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The 2012 Nation of Immigrators Awards - The IMMIS

12/31/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.

Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).


The 2012 IMMI Awardees
Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:
Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.
Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:
[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.
Belated Gumption.  For modest courage expressed ever so slowly, the award goes to President Obama for his authorization through the Homeland Security Department of relief for a slice of the DREAMer population with the implementation of the Deferred Action for Childhood Arrivals (DACA) program. With exit-polls showing that 57% of Americans approve of DACA, imagine how many more DACA applications could have been approved and lives restored had the President used his long established executive authority to exercise prosecutorial discretion when the concept of deferred action was proposed early in his first term. Consider also how DACA might have benefited even more minors brought or required to remain here illegally, such as DREAMer extraordinaire Jose Antonio Vargas (who, at 30.5 years old when the program rules were set up, was six months too old to receive DACA relief), had the program applied to all minors and not set stingy bright-line rules that kowtowed unduly to past DREAM Act proposals in Congress.  

Hit the Road Jack/Home-Wrecker. President Obama reprises his role as "Deporter in Chief" and, as in past years, wins another IMMI.  With over 400,000 deportations in 2012 -- an all-time high -- the President also receives the Home-Wrecker IMMI. According to recently released federal data, between July 1, 2010 and September 31, 2012, almost 205,000 deportation orders were issued for parents with U.S. citizen children, thereby destroying the lives of even more American kids.  With the recent announcement that U.S. Immigration and Customs Enforcement (ICE) will stop asking local police to turn over to ICE immigrants arrested as petty offenders, perhaps fewer deportations will result next year -- especially if Congress legislates a path to legal status and citizenship for the undocumented.  Recent statistics from the Immigration Courts, showing case closures resulting in deportation orders or grants of voluntary departure down to 56.3% from 70.2% two years ago, also support a prediction (fingers crossed) that the President will not receive another IMMI in this category.

Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals").  Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.

Not Especially Nimble. While the primary immigration benefits agency, U.S. Citizenship and Immigration Services (USCIS), has continued its laudable efforts in 2012 to improve transparency, public engagement and responsiveness (especially on humanitarian concerns, such as relief for foreign citizens adversely affected by Hurricane Sandy), the IMMI for lack of speed and agility on business immigration concerns nonetheless must go to this beleaguered agency. USCIS still has not released its promised rule on employment authorization for spouses of certain H-1B workers, or met its year-end deadline on stateside provisional waivers for immediate relatives of U.S. citizens, and has not issued clarifying guidance on L-1B specialized-knowledge requirements promised last January.  Other longstanding problems remain, including the lack of meaningful impact from its Entrepreneurs-in-Residence program (beyond a nifty website with comforting assurances), the persistence of an anti-entrepreneur animus at the Regional Service Centers, the need to put out for re-bid the agency's contract on its Transformation program for the online submission of immigration forms, and the issuance of a "guidance memorandum" offering seemingly helpful but still befuddling instructions on the EB-5 investor issue of "tenant occupancy" that USCIS first raised officially last February.

Constitutional Illiteracy.  The IMMI for misinterpreting the Bill of Rights goes to the 97,062+ yokels who in a petition to the White House have lambasted CNN host Piers Morgan and urged this Brit's deportation for his post-Newtown critique of America's woeful failure to regulate firearms. No one explained their illiteracy better than Pilar Marrero, author of Killing The American Dream: How anti immigration extremists are destroying the nation, who posted this on Facebook:

So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.
Hopeful Baby Steps.  The IMMI goes to U.S. Customs and Border Protection for two recent actions.  CBP reported that it would no longer allow its agents to serve as interpreters for non-English speakers in interrogations by other law enforcement agencies.  It also announced that it would undertake a review of current agency practices in the use of force by its border agents.

No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied":  The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).

Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status.  Nolan notes:

The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.
However shameful the failure to update the waiting period for registry is, even worse is the 1996 law that created mandatory detention of immigrants without benefit of appointed counsel, as Prof. Mark Noferi of Brooklyn Law School persuasively demonstrates.

Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values).  Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics.  Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration.  Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."

Taxing Non-Solutions.  The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions."  There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.

A Supreme Demonstration of Supremacy. The IMMI goes to the U.S. Supreme Court majority that vanquished virtually all of Arizona's nativist law, SB 1070.  Holding that the states must kneel to federal supremacy over immigration, the Court struck down all but one of the Arizona law's provisions, and left it to the lower courts to determine whether in practice the surviving section can pass constitutional muster.

Head in the Derriere.  This year's IMMI goes to those feckless employers throughout America who fail to recognize that -- no matter what happens on comprehensive immigration reform -- the Feds are coming to check your business's immigration papers.  Immigration audits were at their highest in history this past year.  That trend will only continue to rise.  Be forewarned and take some crumb-y advice.
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Well, thats a wrap for our 2012 IMMI awardees.  The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.

Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama.  Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:

Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.
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Can Piers Morgan Be Deported for His Comments on Gun Control?

12/24/2012

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

At the time of writing this blog, more than 48,000 people have signed a petition on the White House website asking that CNN talk show host be deported for his comments on gun control in the wake of the mass shootings at Sandy Hook school.

According to one of the two petitions, "We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens."

The White House is obligated to respond if the petition gathers 25,000 signatures within 30 days. Mr. Morgan, a British citizen, is not a citizen of the United States. Non-citizens can be deported from the US for a number of immigration offenses, but can Mr. Morgan's strident comments favoring gun control truly lead to his deportation?

Not really, based on a quick analysis of some of the relevant provisions in the Immigration and Nationality Act.

Mr. Morgan certainly doesn't seem to be seeking "the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means," and so he is clearly not deportable under INA 237(a)(4)(A)(iii).  Nor is he one who "endorses or espouses terrorist activity", under INA 212(a)(3)(B)(i)(VII), and so he's not inadmissible under that broad provision.  And there's no reason to think that opposition to the Second Amendment would have serious adverse foreign policy consequences. Indeed, it is more likely the reverse given the international outrage against proponents of gun ownership, especially the ownership of automatic assault weapon, that led to the killings of 20 defenseless children and 6 others. So INA 212(a)(3)(C) does not apply.

Mr. Morgan has nothing to fear, if he indeed fears being deported from the United States, and the petitioners are truly wasting their time and losing more and more credibility  in the wake of an increasing number of gun related deaths. While the United States is clearly not the envy of the world with regard to its obsession for gun ownership that results in more homicides than most other nations, it can at least boast of freedom of speech enshrined in the First Amendment in the Bill of Rights. Anyone, citizen or non-citizen, whether within or outside the US, has the right to peacefully advocate for a change to the US Constitution, including a re-evaluation of the Second Amendment that forms the basis for people to easily own guns, including assault weapons that lead to the tragic and senseless slaughter of innocents.
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Guest Blog: All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist

12/24/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
[Blogger's Note:  Today's post brings a bit of holiday cheer from my colleague and I-9 expert, Nicole ("Nici") Kersey.  I want to publicly thank her for allowing me a Christmas break from blogging, and for the delicious chocolates.
All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist
By Nicole Kersey
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I was recently asked to provide a single tip/piece of I-9/E-Verify advice for employers as part of a holiday-themed post for another blog.  I was happy to do it, but I felt like a kid sitting on Santa’s lap being told that I could only ask for one gift.  If you’ve ever been in my closet, well, that’s creepy.  But you would know, from the fact that I buy the same shirt in 3 different colors, that I am not good at choosing just one of anything.    

So when Angelo Paparelli asked whether I might give him the gift of a week off from blogging (he didn’t know I’d already sent him chocolates), I first wrote a lengthy piece about the day that I accidentally shaved off my eyebrow (then drew it back on with purple eyeliner), but I couldn’t find a way to make the story relate to immigration.   Then I realized I was in that rare “wishing for more wishes situation.”  I guess that makes Angelo the genie.  Or Santa?  I’ve mixed metaphors again.  D’oh!  (Dough?)  I guess we will be leaving metaphorical cookies out for Santa this Christmas Eve.  (Smart cookie, tough cookie … I plan to milk this for all it’s worth.)

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So my holiday gift to you:  Ten of my greatest tips for avoiding liability for immigration-related violations.  [Yes, I know it is one of the worst Christmas gifts ever, but I’m not rolling in dough, so that’s the way the cookie crumbles.  And if you are my 2-year-old daughter and have suddenly developed the ability to read, do not fear (you smart cookie, you)!  I splurged on something a little more fun for you.]

  1. Provide mandatory annual I-9 training to everyone involved in the I-9 process.  This is the least expensive and most effective way to limit liability.  Invest in good training by an attorney with I-9 expertise.  See here for more.  
  2. Don’t make the mistake of assuming that, because you know you don’t employ any unauthorized workers, you don’t face much risk in the event of an ICE inspection.  I have handled cases in which ICE found zero unauthorized workers and imposed crippling fines for paperwork violations.  I’ve also handled cases in which more than half of the workforce was found to be unauthorized, and no penalties were imposed.
  3. Do not assume that your I-9s are perfect.  In my experience, the employer with perfect I-9s is a myth.  In all likelihood, you have some I-9 errors in your (actual or virtual) filing cabinet.  The key is finding out how much risk you face then doing a cost-benefit analysis to determine the appropriate level of remediation.
  4. Make sure you have a strong immigration compliance policy in place, that the policy reflects your corporate culture (a cookie-cutter policy is better than nothing, but the best policy is one that requires compliance and works for you), and that the policy is reflected in your culture (read:  actually follow it).  Ensure that team members are given responsibility for relevant aspects of the compliance policy and that their annual review process includes consequences for ensuring compliance (or for failure to do so).  In the event of an ICE inspection, ICE may ask to see a copy of your policy.  Having a good policy in place may help you to prove that any mistakes could be attributed to a “rogue” manager (and may thus help you avoid liability).  
  5. In addition to a compliance policy, develop an investigation response protocol.  This ensures that all team members know what to do & who to call (other than Ghostbusters) in the event of an ICE inspection or other immigration-related government site visit.  For more, see here.   Also consider sending Angelo a copy of Ghostbusters for Christmas [Editor's Note:  Please don't!]; rumor has it, he has never seen this snickerdoodle of a film.  
  6. Talk to an attorney to do a quick review of your operations to ensure that you are in compliance will the relevant E-Verify laws. Do not assume that, because you haven’t heard anything about a law affecting you, you aren’t required to use E-Verify.  A number of E-Verify laws, rules, and regulations have taken effect in more than a dozen states, and depending on the language of the law and the number of employees you have, you may risk losing your business license if you fail to use E-Verify.  
  7. If you’re not required to use E-Verify, consider using it anyway.  There are serious pros and cons to consider, but you get brownie points (yeah, yeah, I know they’re not cookies, but they are relatives, and Christmas is all about family, right?) with ICE for using it, and if you have any paperwork errors lurking in your I-9 filing cabinet (see #3:  you do), using E-Verify may help you avoid fines.  
  8. If you are involved in a merger, acquisition, or other corporate reorganization, raise immigration issues early.  Ask me for a due diligence checklist.  I-9 liability can affect price and even kill a deal.  If one of the companies involved in the transaction uses an electronic I-9 software program, the fate of the electronic I-9s must be determined early (will the newly formed company keep the electronic I-9s, use the same software?).   “Regular” immigration issues should also be discussed.  To the extent that employees are working under employer-sponsored visas or are in the middle of an employment-based green card application process, the employers must determine what (if any) paperwork must be filed (and when) to ensure that the employees do not lose their work authorization.
  9. Don’t be “e-terrified,” but be cautious. Electronic I-9s and E-Verify can improve compliance, but a flawed electronic system can create greater risk than flawed paper I-9s. Understand that the process of “going electronic” may be a time-consuming task. If you do it right, it will be worth the time and effort.  See this article for more details.  
  10. Watch this video.  It is about cookies.  It has nothing to do with immigration.  (Well, that’s not entirely true.  Frank Oz (voice of Cookie Monster) was born in England and immigrated to the U.S. when he was 5 years old.)  Unless you are the Grinch or a close relative, it will make you smile.  And “smile and be nice” = some of the best legal advice I’ve ever heard.
Merry Christmas!
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Resume Review in the PERM Process

12/21/2012

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

Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  INA § 212(a)(5)(A)(i).The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith.

Attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii). However, the DOL does not prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process.  The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

The DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. Yet, real world recruiting is at times impossible when the DOL sets forth “unreal” recruitment standards for employers! As an attorney who regularly counsels employers filing PERM labor certifications, I have found that one of the most difficult concepts for some employers to grasp is the resume review process and how it ought to be conducted in the PERM process.It’s hard for an employer to comprehend why they have to continue to assess an applicant who upon receipt of an e-mail from the employer, responded that he was “away” and would get back to the employer at some point in the following week; or an applicant who, when contacted, had no recollection that he had even applied for the job and needed to be informed of the job opportunity and the employer’s business; or an applicant who only listed “Software Engineer” as his experience leaving the employer unclear as to what skills he may possess. As reasons for rejection of applicants, employers sometimes state,“applicant is far too overqualified and I would never hire him for this position” or “these applicants went to foreign universities and I know they require sponsorship.” While these reasons may be acceptable in the employer’s normal consideration process, neither is a valid reason for rejection in the PERM process.Some employers become frustrated and push back. I find that I very often have to preface my comments with “We are not operating in the real world here…”

Currently, and for some time now, every PERM audit letter requests verification of the unavailability of US workers. A request for resumes and applications for all US workers who applied for the job opportunity seems to have become the standard. The DOL specifically wants to review documentation of the employer’s contact with applicants and its assessment of the qualification of applicants.Yet, other than the expectation that the employer conduct “good faith” PERM recruitment, the DOL has not issued significant guidance with regard to resume review. But it is possible to glean some information from recent decisions by the Board of Alien Labor Certification Appeals (BALCA). In particular, two specific cases, involving Supervised Recruitment, shed some light on how the DOL expects employers to conduct resume reviews.

In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc). During Supervised Recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements.

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials.

The takeaway from Goldman Sachs, and the concept that can be difficult to explain to employer clients, is that regardless of how convinced the employer may be that the U.S. worker applicant is unqualified for the position based only on his resume, if there is even a hint that the applicant may appear qualified to the untrained eye of a CO, it is worth the employer’s time to interview the applicant. During an interview, the employer can zero in on the specific requirements of the offered position and better assess the applicant’s qualifications.

In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16. 2012), the employer’s requirements included “Proficiency in Excel or Access,…understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines…” The CO denied the case after concluding that U.S. worker applicants had a combination of education, training and experience equivalent to the employer’s job requirements and could acquire Access and SharePoint skills while on the job.

Rather than focusing, as it did in Goldman Sachs, on whether or not the employer had a duty to interview the U.S. workers to better assess their qualifications, the key issue for BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. BALCA stated that the employer had submitted a business necessity explanation in its Recruitment Report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the CO did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, BALCA held that the CO cannot dismiss the employer’s stated requirements and substitute his judgment for the employer’s.

Confused much? The JP Morgan case emphasizes the importance of submitting a compelling business necessity argument in response to PERM audits. That way, if and when the employer rejects U.S. workers, the reason will be clear to the CO. But does the employer have to interview when the applicant’s resume does not list all the requirements or not? I think the clear answer is that the employer should always err on the side of interviewing the applicants. If there is even a hint of a question as to whether the applicant may appear qualified, the employer should interview. If the applicant failed to list the one technology required for the position but listed 5 similar technologies, the employer should interview. If the employer has stated that it will accept any combination of education, training and experience and the applicant has broadly listed his experience as simply “Software Engineer,” the employer should interview. While the DOL claims that the employer’s consideration of these applicants should resemble its normal consideration process, it just cannot. In normal consideration processes, the employer may utilize its judgment to reject any applicant deemed unqualified.  When it comes to the PERM process, the employer must go out of its way to demonstrate to the DOL that it has, in good faith, tried it’s best to find a U.S. worker to fill the offered position. In addition, the employer should take pains to explain in great detail, if audited, specifically why each applicant was not qualified for the offered position, providing evidence of any interviews and other communication with the applicants.
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USCIS and the Lack of Procedures for Surviving Relative Petitions Under INA 204(I)

12/16/2012

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

Congress passed a noble law in 2009 to protect surviving family members who were the derivatives of employment-based and other categories of petitions and applications.  Specifically, the law provides that certain categories of individuals could continue to have petitions, adjustment applications and related applications adjudicated so long as they were residing (not necessarily present, but residing) in the United States at the time the qualifying relative died and continuing to reside in the United States.  The statute specifically states that the named categories of individuals “shall have” a “pending or approved” petition of the type listed in subsection 2 of the statute “and any related applications adjudicated notwithstanding the death of the qualifying relative . . . .”  INA § 204(l)(1)(emphasis added).

This blog will focus on the problems arising in the context of surviving relatives of beneficiaries of employment-based petitions who have filed adjustment applications.  Given the backlogs in the EB-3 category for India for example making people wait decades before their priority dates become current, there may be more and more surviving relatives to deal with.  This blog seeks to help shed some light on surviving relative cases and highlight some of the overall problems with the lack of clear guidance from USCIS on what surviving relatives should do and how their requests will be handled.

The statute is worth reviewing in its entirety to demonstrate how odd it is that USCIS treats surviving relatives differently based on whether an I-140 has been approved or remains pending:
(l)  SURVIVING RELATIVE CONSIDERATION FOR CERTAIN PETITIONS AND APPLICATIONS-

(1) IN GENERAL- An alien described in paragraph (2) who resided in the United States at the time of the death of the qualifying relative and who continues to reside in the United States shall have such petition described in paragraph (2), or an application for adjustment of status to that of a person admitted for lawful permanent residence based upon the family relationship described in paragraph (2), and any related applications, adjudicated notwithstanding the death of the qualifying relative, unless the Secretary of Homeland Security determines, in the unreviewable discretion of the Secretary, that approval would not be in the public interest.

(2) ALIEN DESCRIBED- An alien described in this paragraph is an alien who, immediately prior to the death of his or her qualifying relative, was--

(A) the beneficiary of a pending or approved petition for classification as an immediate relative (as described in section 201(b)(2)(A)(i) );

(B) the beneficiary of a pending or approved petition for classification under section 203 (a) or (d) ;

(C) a derivative beneficiary of a pending or approved petition for classification under section 203(b) (as described in section 203(d) );

(D) the beneficiary of a pending or approved refugee/asylee relative petition under section 207 or 208 ;

(E) an alien admitted in `T' nonimmigrant status as described in section 101(a)(15)(T)(ii) or in `U' nonimmigrant status as described in section 101(a)(15)(U)(ii) ; or

(F) an asylee (as described in section 208(b)(3) ).
As you can see, the law helps a host of categories of individuals, but here we will use the example of families who suffered the loss of a member who had been sponsored by an employer, with the sole difference being that in one case the I-140 had been approved and in the other the I-140 remains pending.  In both cases, the families have been able to file their green card applications.

Mahjouba and Karim came to the United States from Morocco, two young children in tow, when Mahjouba was sponsored by a company on an H-1B visa.  After two years, the company was so impressed with her work that they sponsored Mahjouba for an immigrant visa.  The immigrant petition on Form I-140 was filed premium processing on her behalf and quickly approved.  When her priority date became current, the family submitted their adjustment of status applications, along with advance parole and work authorization applications.  Karim used his EAD and started working.  When the family traveled, he used his advance parole.

Henri and Helene came from France when Henri was sponsored for an H-1B, and they also brought their children.  After a few years of working with the company, he was sponsored for an immigrant visa.  The immigrant petition on Form I-140 was filed regular processing, and remains pending along with the adjustment applications, which were filed concurrently because Henri’s priority date was current at the time of filing.  Helene decided to use her EAD to work and her advance parole to travel, instead of depending on her H-4, while the immigrant petition for her husband and the families’ adjustment applications were pending.

Tragedy strikes both families.  Mahjouba became very ill and died from a rare form of cancer.  Henri was hit by a drunk driver and killed.

The families are in similar straits – the person sponsored by an employer has been killed.  Their dependents are residing in the United States, grieving and wondering what will happen to us now?

It seems quite clear from the statute that Karim and his kids and Helene and her kids should be protected in the same way.  So long as they meet the requirements of the law – that is, at least one member of each family was residing in the United States at the time of death and will continue to reside in the United States, their “pending or approved” petitions and adjustment of status applications should continue to be adjudicated as if the death had not occurred, unless the Secretary of Homeland Security decides that approval would not be in the public interest.  Thus, they should be able to renew their EAD and AP documents, and continue to work and travel and ultimately get their green cards.

Unfortunately, because USCIS took the position in Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative , PM-602-0017 (December 16, 2010) (“Policy Memo”) (and in the Adjudicator’s Field Manual sections it revised pursuant to that memorandum) issued December 16, 2010, that pursuant to 8 C.F.R. § 205.1(a)(3)(iii)(B), an approved I-140 is automatically revoked when the individual sponsored dies, Karim and his family will not have the same security of knowing their petitions will proceed and may be subject to a different, more intense standard, i.e. to request “humanitarian reinstatement.”  I say “may” be subject to the more exacting standard because the policy memorandum is not clear on the matter, and does give an adjudicating officer an “out” by stating “reinstatement is generally appropriate as a matter of discretion, if section 204(l) of the Act and Chapter 10.21 of the AFM [Adjudicator’s Field Manual] would support approval of the petition if it were still pending.”  Policy Memo at p. 15 (and AFM 10.21(7)).

As the Citizenship and Immigration Services Ombudsman, and many others, have noted, in taking the position that an approved I-140 is automatically revoked by the death of the beneficiary, thus requiring humanitarian reinstatement, USCIS guidance “does not align with the purpose and plain language” of the statute.  The bifurcated approach is unfair, unnecessary and nonsensical.  Why would a pending I-140 petition be treated more favorably than an approved I-140 petition, as the approved petition has been vetted and completed and revoking it works a hardship on derivative beneficiaries that Congress intended to prevent by enacting INA § 204(l)?  At the very least, they should be treated the same – that is what the law in fact dictates.  The American Immigration Lawyers Association (AILA) made an interesting argument in comments it submitted on USCIS’s draft memorandum.  Specifically, AILA demonstrated that the automatic revocation provision does not apply where INA § 204(l) applies.
The automatic revocation regulations purport to revoke an approved petition only “upon the death of the petitioner or the beneficiary,” so they can be seen as having no operation, because §204(l) preserves the petition the moment before death.  Therefore, the “immediately prior to the death” language of §204(l) trumps the “upon the death” language of the regulations on automatic revocation at 8 CFR §205.1. For the §204(l) eligible beneficiary, therefore, automatic termination has no effect on the already approved petition. This holds true for all §204(l) eligible beneficiaries, including those who cannot currently avail themselves of humanitarian reinstatement
See AILA Comment on USCIS Draft Memorandum: “Approval of Petitions and Applications after the Death of the Qualifying Relative; New INA Section 204(l) updates the AFM with New Chapter 20.6 and an Amendment to Chapter 21.2(h)(1)(C)” (June 1, 2010) at p.6.

Putting aside the unfairness (if we can bring ourselves to do that), what do Karim and Helene need to do, how can they embrace the protection Congress has provided for their families?  Unfortunately, as the Ombudsman determined, “no clear process is available for survivors to request benefits from USCIS under INA section 204(l).”  See Ombudsman Report at p. 2.

Reviewing the policy memorandum and AFM section 10.21 gives no hint of what Helene should do.  There are no instructions for individuals whose qualifying relative’s petition was still pending at the time of death.  Presumably it and related application will continue to be processed and the family can use and renew their EAD and AP to work and travel, respectively, without issue.  Maybe.  More on that aspect below.

Karim can get some direction from AFM 10.21(7).  That section, as noted above, dictates that Mahjouba’s I-140 petition was automatically revoked upon her death and that Karim needs to look to AFM 21.2(h)(1)(C) for guidance on reinstating Mahjouba’s petition and obtaining the protection of INA § 204(l).  Before going on to that, note that USCIS will not give effect to Mahjouba’s employer’s request to withdraw the I-140 approval after her death “since the employment-based petitioner no longer has any legal interest in the immigration of the principal beneficiary’s widow(er) or children.”  AFM 10.21(c)(3).

So, what does Karim need to do?  AFM 21.2(h)(1)(C) directs someone in Karim’s position to “send a written request for reinstatement to the USCIS service center or field office that approved the petition except that, if the beneficiary has properly filed an application for adjustment of status with USCIS, the written request should be submitted to the USCIS office with jurisdiction over the adjustment application.”  This section also directs that the request must include a copy of the approval notice for the revoked petition and the death certificate of the qualifying relative.

Although it is not stated in this section, to comply with the requirements of the statute, Karim would need to include proof of his residence in the United States at the time of his wife’s death and that he continues to reside in the United States.  In addition, it would be prudent for him to include a copy of each family member’s I-485 receipt notice, which should include each individual’s alien number, all of which could assist USCIS in matching up the request to each family member’s file.

Once the request is submitted, USCIS takes the position that a request like Karim’s, because it involved an I-140 that was previously approved and in USCIS’s view automatically revoked, is a request for humanitarian reinstatement, is discretionary, and may be denied “if the director decides that humanitarian reinstatement is not warranted.”  AFM 21.2(h)(1)(C).  The section goes on to state:
While there are no other rules or precedents on how to apply this discretionary authority, reinstatement may be appropriate when revocation is not consistent with “the furtherance of justice,” especially in light of the goal of family unity that is the underlying premise of our nation’s immigration system. In particular, reinstatement is generally appropriate as a matter of discretion, if section 204(l) of the Act and Chapter 10.21 of this AFM would support approval of the petition if it were still pending.
It is unclear what guidance, given the lack of “other rules and precedents”, terms like “may be appropriate” or “generally appropriate” provide to the adjudicating officer, but one would hope that given Congress’s intent to protect individuals in Karim’s position, and the fact that the statute clearly states it covers those with “pending or approved” petitions, that, barring other grounds of ineligibility, the I-140 should be reinstated and the adjustment applications and related applications should continue, as if his wife had not died.

Presumably, Helene could submit a similar packet to ensure the protections of §204(l) are applied to her and her family.  In her case, she need not request reinstatement, but presumably she too would need to provide proof of her spouse’s death, and demonstrate residence in the United States at the time of his death and her intent to continue to reside in the United States.  Because her husband’s I-140 is still pending, the best guess is that she needs to send the information to the Service Center processing his I-140.

As pointed out above, there is no clear system in place for how USCIS handles these requests, acknowledge these requests, process these requests, or give notice to family members about these requests.  Because there are no regulations, no form, and no guidelines other than what may be “appropriate”, there is little a family can do but contact USCIS or perhaps even the Ombudsman’s office to try to get acknowledgement that their applications are being adjudicated.

A big question arises with regard to travel.  It would appear that the ability to travel after submission of the request by someone in Helene’s position might be a bit safer than someone in Karim’s position, given that Henri’s pending I-140 petition remains pending.  But what happens if the request is still pending or is denied while the family is out of the country, using their valid advance parole documents to travel?  Clearly if the request has been denied, the family should not travel and if they are outside the country they could get stranded, as this has happened to similarly situated individuals.  But if the request is still pending, should Karim and his family take the risk of traveling?  One would counsel probably not, because even though the advance parole document was valid when they left the country and remains, on its face, valid and no notice of its revocation has been given, CBP might not honor the documents at the border if they see that the underlying I-140, upon which all other applications depend, has been automatically revoked and not yet reinstated by USCIS.

One last diversion: what about those individuals who have an approved or pending EB-3 I-140, are from countries with severely backlogged priority dates like India, and therefore have not yet been able to file an adjustment application?  What does an individual in H-4 status do when his or her H-1B spouse dies?  The statute clearly states that individuals in this category should be covered, see INA § 204(l)(2)(C), but for how long?  It is unclear whether the “continuing to reside” requirement applies only to getting the revoked I-140 reinstated or reaffirmed, or whether the individual would have to remain, waiting decades for the priority date to become current.  The Policy Memo provides little clear guidance:
Because section 204(l) of the Act does not waive the standard eligibility requirements for applying for adjustment, an alien who did not already have an adjustment application pending when the qualifying relative died may not be able to seek adjustment in every case in which a pending petition was approved, or an approved petition was reinstated, under section 204(l) of the Act.  An alien whose petition has been approved or reinstated under new section 204(l) of the Act, but who is not eligible to adjust status, would not be precluded from applying for an immigrant visa at a consular post abroad.2  The approval of a visa petition under section 204(l) of the Act does not give an alien who is not eligible for adjustment of status, and who is not in some other lawful immigration status, a right to remain in the United States while awaiting the availability of an immigrant visa.
Footnote 2 states:
The alien must have been continuing to reside in the United States in order for the petition to have been approved.  Once it has been approved, however, the alien’s departure to obtain a visa would not change the fact that the alien met the residence requirements when the officer adjudicated the petition.
One interpretation of this language from the Policy Memo is that the individual is only required to continue to reside in the United States until the I-140 has been reinstated or reaffirmed.  The implication therefore is that the person can then leave the United States to wait for the priority date to become current and apply for an immigrant visa via consular processing, although note that the Foreign Affairs Manual has not been updated to take the provisions of INA § 204(l) into account.  And after they have waited 20 or 30 years in India (one report has estimated that the EB-3 India wait is 70 years!), how will they get the National Visa Center to prompt their case into active status?

Since the H-4 spouse can no longer maintain status once his or her H-1B spouse has died, he or she may be able to remain in the United States for 180 days past the death of his or her spouse and take harbor in INA 245(k).  Or he or she could arguably wait in the United States until 180 days after their valid I-94 expires and then leave to consular process.  But given the backlogs, 180 days could never be enough time, and INA § 204(l) does not protect against grounds of ineligibility not related to the death of the spouse (so, INA 245(c) could make an overstay spouse ineligible to adjust and if such spouse leaves to consular process, they might trigger the 3 or 10 year bar and would need a waiver – a waiver they could only get if they had some qualifying relative, as their deceased spouse could not serve as that qualifying relative in this example because he or she was not yet a lawful permanent resident or citizen).

These individuals could try to change to another nonimmigrant status, but again the decades they might have to wait make this seem untenable – how long can one really remain a student?  If they do not have the appropriate qualifications for an H-1B, or keep getting unlucky under the H-1B cap, what to do?  One could perhaps try to request deferred action on humanitarian grounds given the humanitarian purpose behind INA § 204(l), from the Department of Homeland Security in order to avoid accruing unlawful presence while waiting for the priority date to become current to leave the country in order to consular process, but would DHS grant such a request?  There is no guidance as to that issue.  Clearly, the backlog of priority dates is a missing link in the protection that INA § 204(l) was meant to provide.

USCIS should take up the Ombudsman’s November 26, 2012 recommendations as soon as possible and conduct notice-and-comment rulemaking to create or designate a standard form, establish a receipt protocol, and an adjudication process that is in compliance with the actual statute.  USCIS should stop regarding these requests as discretionary (“shall be adjudicated”), publish instructions for applicants and petitioners and track and monitor the processing of surviving relative requests.  The loss of a family member is enough of a burden, USCIS should not double down on that burden by failing to institute clear procedures to give families comfort and clarity as to their ability to have their applications adjudicated, and feel safe to travel and work.  Moreover, one would hope that the backlogs will be cleared up but in the interim, the problem posed by backlogs in the surviving spouse context should be taken up by USCIS or even by Congress.
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Rethinking Immigration: Stop the Alienation of Affection

12/16/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

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With the Obama Administration and lawmakers in both parties promising to fix our dysfunctional immigration system, it's time for a reality-based understanding of global migration and a fresh choice of words.

As Prof. Fariborz Ghadar, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:


Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent.
Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.

Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency.  We call them "aliens" -- a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.

Consider too these dictionary definitions:
alien /ˈeɪlijən/adjective

1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to 

▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.

2: from another country :foreign

▪ alien residents

3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy

4: from somewhere other than the planet Earth 

▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters.

alienate  /ˈālēəˌnāt/Verb

1.Cause (someone) to feel isolated or estranged.2.Cause (someone) to become unsympathetic or hostile: "the association alienated its members".

1: to make unfriendly, hostile, or indifferent especially where attachment formerly existed

2: to convey or transfer (as property or a right) usually by a specific act rather than the due course of law

3: to cause to be withdrawn or diverted

Synonyms: alien, estrange, disaffect, disgruntle, sour

When, decades ago, I first began practicing immigration law, I didn't give the word much thought, despite its alternative meanings, because it was -- as the law professors taught -- a "term of art." As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:
§ 101(a) Definitions As used in this Act-- . . . (3) The term "alien" means any person not a citizen or national of the United States.
Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn't bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts, Editor of Interpreter Releases (then the "Immigration Bible") and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens "AIL-yuns," which to me sounded pleasant, like "millions," or impressive, like "stallions."

But times and phrasings have changed.  We would never refer to people of color today, as "colored" -- the term generally used in the 1950s for African-Americans and other non-Caucasians.  So, "aliens" -- the word -- must go.

We should also drop the term "nonimmigrant" from our statutory lexicon because it defines by negation and suggests an inhospitable negativity.  Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.  

If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing "the Migrant Manifesto":

America need not surrender its sovereignty.  It need not open the borders for all to enter.  It must make hard choices, yet do so with respect for the dignity of all.  As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from "the Migrant Manifesto":
We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . . 

We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . . 

We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .

To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .

When the rights of migrants are denied the rights of citizens are at risk.

Dignity has no nationality.
On a similar theme, as Ai-jen Poo, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:
We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.
Let's start by banishing bullying words, hate speech and statutory epithets.  Let's stop the name-calling and start the welcoming.
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"Bibles, Badges and Business" Converge for Comprehensive Immigration Reform

12/9/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The "phantasmagoric politics" of Washington DC often produce hallucinatory effects:
[A]lmost every time I travel there . . . something comes over me. Inside the Beltway, talk can give off the illusion of action. The mouthing of words, however powerful on the printed page or eloquent when spoken, is seen . . . as equivalent to progress.
During my latest trip, however, a hopeful, reality-based euphoria replaced the usual "illusion of action," as I attended a National Strategy Session on comprehensive immigration reform (CIR) held Dec. 4 and 5 and sponsored by ForgingConsensus.org.  For the first time in ages, conservatives and progressives joined together in candid and helpful conversation.  

Representatives from national religious organizations, law enforcement and commerce ("Bibles, Badges and Business") spoke eloquently about the urgency to enact CIR and offered common-sense wisdom that acknowledged just how surreal our immigration policies have become.  As Jim Wallis, CEO of Sojourners -- "a national Christian organization committed to faith in action for social justice" -- remarked, our system causes people to be "stuck between 'No Trespass' and 'Help Wanted' signs."

The National Strategy Session, organized by the National Immigration Forum, is available for online viewing. The press conference offers the key points:
ForgingConsensus.org also arranged a full day of visits to Republican and Democratic lawmakers and their staffs.  I joined a group that included Mark Shurtleff, Utah's Republican Attorney General, Dr. Richard Land, President of the Southern Baptist Convention Ethics and Religious Liberty Commission, and Robert Gittelson, a business executive and founder of Conservatives for Comprehensive Immigration Reform.

The meetings offered many new insights beyond merely the post-election recognition by the GOP that now is the time for Congress to reform our immigration laws.  One staffer, counsel for a senior Republican, offered a play-by-play, inside-baseball forecast of alternative scenarios but concluded glumly (as I paraphrase):
No matter what the Republicans do, they will not win.  If CIR passes, the Democrats will get most of the credit.  If it fails, the Republicans will be blamed.
A female Member of Congress -- a Democrat -- posed the challenge this way (I'm still paraphrasing):
I try to start every negotiation by trying to think like the other side. The only way CIR will pass is if Democrats figure out what the Republicans want. They need to show their constituents that the bill that passes promotes conservative values.
A newish GOP lawmaker suggested several core values he believes his fellow conservative legislators and constituents could embrace (again I paraphrase):
We would support small-government immigration solutions, family values, entrepreneurship, innovation, and power sharing on immigration between the federal and state governments (perhaps a pilot program in which the feds continue to do the security screening, border protection and administering of the immigration system but states get to experiment with block grants of authority to issue temporary-worker and green-card visas based on local conditions and needs).
The two days of strategizing with out-of-towners and engaging with Beltway insiders convinced me that CIR -- whether in a grand bargain or in a series of coordinated, interlocking votes on pieces of connected legislation -- enjoys its best prospects for near-term passage in several years.

The undocumented population, though shrinking from 12 million to 11.1 million between 2007 and 2011 according to recent census data, consists mostly of "mixed-status" families that include U.S. citizens and permanent residents, many of whom are children.  This population will not go away by self-deportation; they will remain together with or without new laws. Other than hate-spewing nativists like Ann Coulter and Tom Tancredo, Republicans recognize that the undocumented are human beings, not a "plague of locust[s]." The consensus of economists (other than Karl Marx) is that widening the entryway to our borders will foster prosperity. An "Immigration Hawk," Jim DeMint, is leaving the Senate. A new "Gang of Eight" on immigration has formed in the Senate (Democratic Sens. Chuck Schumer of New York, Dick Durbin of Illinois, Michael Bennet of Colorado, Bob Menendez of New Jersey, and Republican Sens. John McCain of Arizona, Lindsey Graham of South Carolina, Mike Lee of Utah and Sen.-elect Jeff Flake of Arizona).  The House is meeting in small groups behind closed doors -- both leading lights and new faces.

As Utah AG Mark Shurtleff told the audience at the National Strategy Session, now is a "kairos moment" for immigration reform, or as Wikipedia would say, "a moment of indeterminate time in which something special happens."  Kairos, he noted, also carries a religious significance in that kairos time should be treated as a providential call to action.  

This trip to Washington -- probably because Americans from out of town and from diverse walks of life joined in -- was different. Boots on the town seem to have displaced partisan positioning and lofty rhetoric divorced from action. 

For immigration reform, this kairos call to action, at this auspicious moment, must involve people of good will and sincere motivation, acting inclusively, with country before party, to promote our shared core values -- economic strength, family unity, worker protection, freedom of expression, and religion (or of no religion), border integrity, the rule of law, and human dignity. 

I feel better about the city, and more hopeful for the country.
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The Sweet Smell of Success: H-1B Visas for Entrepreneurs

12/9/2012

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

The title of this blog may seem odd as the H-1B visa is usually associated with an employee who earns a regular wage at the prevailing rate. Yet, entrepreneurs may benefit from the H-1B. Since the USCIS recently set up an Entrepreneur Pathways Portal inviting entrepreneurs to use existing nonimmigrant visas, including the H-1B visa, an analysis on how the H-1B visa can be legitimately exploited by entrepreneurs is worthy of further  exploration.

Last week’s blog summarized the nonimmigrant options for entrepreneurs suggested in Entrepreneur Pathways, and it also speculated whether this new welcoming embrace of foreign entrepreneurs may possibly change the “Culture of No” within USCIS, whose officials generally places a small business under a fraud profile. A startup may be even more rudimentary than an established small business and thus more susceptible to being viewed as a fraudulent artifice. 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. While, in the past, USCIS has often been accused by critics of harboring a systemic bias against small business, Entrepreneur Pathways holds out the promise of a new and more welcoming attitude. The degree to which this flexibility will operate in practice will depend, in large measure, on the extent to which emerging companies and inventive business strategists press their case for immigration benefits.

Regarding the H-1B visa, it is true that 8 CFR § 214.2(h)(4)(ii) requires the existence of an employer-employee relationship, which includes the employer’s ability to “hire, pay, fire, supervise, or otherwise control the work of such employee.” Can the startup owner be able to sponsor himself or herself on an H-1B through the startup? The USCIS portal is surprisingly receptive, but still limited by the rigid methodology and narrow assumptions of the Neufeld Memo that elevates the right of control over all the other factors set forth in the regulation, such as the right to hire, pay, fire or supervise the employee. 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. Not only can observance of corporate formalities serve legitimate business interests and avoid the “piercing of the corporate veil”, by providing the patina of control over individual initiative they may also serve to convey immigration benefits.

The ethos of any new business idea is change, an unwillingness to sacrifice creativity and growth on the alter of certainty.  It is the preference for certainty, however, most notably reflected in the Neufeld Memo that  may make it difficult for the 100% owner of a startup to successfully obtain an H-1B visa. If the beneficiary has not only conceptualized the business, but also invested only her own capital, it will be difficult for her to have a board of directors that can have the ability to discipline or fire her. Indeed, noted attorney David Ware asks a good question: “What entrepreneur in his or her right mind is going to invest blood, sweat and tears, not to mention money, in an entity holding this power?”  If we expect the entrepreneur to take a chance, must not the USCIS itself accept some measure of risk?  Concern over fraud, while totally legitimate, must be balanced against no less compelling concerns for allowing the honest expression of commercial imagination.

Although Mr. Ware’s point is well taken, we caution against being completely dismissive of the USCIS effort to welcome entrepreneurs, especially the H-1B visa, which one can have more access to over other visas such as the O-1, E-2 or L-1A. The agile practitioner should invoke old decisions that recognize the separate existence of the corporate entity. It is well established that a corporation is a separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if he or she has a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the US.

There are other difficulties for an H-1B entrepreneur that may be beyond the USCIS’s control. Every H-1B petition must be accompanied by a certified Labor Condition Application from the DOL. Under an LCA, the employer attests that it must pay the beneficiary the higher of the prevailing or actual wage, and must also do so on a regular prorated basis. In a startup, there may be no revenue stream to pay the entrepreneur initially. Thus, unless the startup is sufficiently capitalized through venture capital or other forms of financing that can ensure a steady stream of income to the H-1B beneficiary at the required wage, the petitioning entity may be in violation of the DOL rules if it cannot guarantee a regular prevailing wage.

Also, a DOL rule at 20 CFR § 655.731(c)(9)(iii)(C) states that any attorney fees paid by the H-1B beneficiary will be viewed as a lowering of the required wage that the employer is required to pay the beneficiary. There is also a prohibition of the employee paying the training fee of $750 or $1,500. In the case of a startup, where the H-1B beneficiary has invested his own money into the enterprise, the fact that the petitioning entity makes these payments ought not to be viewed as a violation of the DOL rules regarding impermissible payments. Since it is the entity that is making these payments, which is considered separate from the beneficiary, and which also controls the beneficiary, it should not be viewed as impermissible. Otherwise, there is no way that the USCIS can promote the H-1B to entrepreneurs.

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. The very notion of specialized occupations has and will continue to change as the pervasive impact of technology in the Internet Age makes itself felt at all levels of economic activity.

While there are insurmountable hurdles for H-1B entrepreneurs, it is hoped that the USCIS will make every effort for the program to work for them. The H-1B is the most accessible visa to a foreign student as the E-2 visa only applies to nationals of limited countries that have a treaty with the US, and none of the BRIC countries have such treaties. Very few entrepreneurs can qualify as extraordinary under the O-1 and the L-1A visa would only apply to an individual who has been employed overseas for one year in the past three years in an entity that has a parent, subsidiary, affiliate or branch in the US. It also raises a larger question: How can we use US immigration policy not merely to preserve the status quo but actually create wealth and jobs? For it to work successful, USCIS officials have to examine and approve cases consistent with this objective. The problem goes beyond the “Culture of No.” The USCIS should think of immigration in a strategic sense as a mechanism to create wealth and expand the economy. Presently, USCIS thinks in static terms so naturally the focus is on protecting what now is and judging people not by their potential but by their documented accomplishments. USCIS, on the other hand, should think like an entrepreneur so as to avoid a dissonance or disconnect between the regulators and those whom they regulate. The USCIS Entrepreneur in Residence program, from which the Entrepreneur Pathways portal has ensued, appears to be a step in the right direction. Only time will tell whether it will truly serve the needs of entrepreneurs. The willingness of the entrepreneur to take risks must be matched in full measure by an immigration system that also embraces the value of innovation. As T.S Elliot famously reminded us: “Only those who risk going too far can possibly find out how far it is possible to go.”
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The Senate Must Modify Its Filibuster Rules to Pass Comprehensive Immigration Reform

12/1/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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“ And there took place . . . [in the U.S. Senate] so many “extended discussions” of measures to keep them from coming to a vote that the device got a name, “filibuster,” from the Dutch word vrijbuiter, which means “freebooter” or “pirate,” and which passed into the Spanish as filibustero, because the sleek, swift ship used by Caribbean pirates was called a filibote, and into legislative parlance because the device was, after all, a pirating, or hijacking, of the very heart of the legislative process. ...” Master of the Senate: The Years of Lyndon Johnson, [Vol.] III, by Robert A. Caro


The fight to end the pirating of legislative progress, the effort by Sen. Harry Reid (Democratic Majority Leader), and supported by President Obama, to soften the rough edges of the filibuster, is the talk of Washington and the media.   If Reid's proposals were as drastic as Sen. Mitch McConnell (GOP Minority Leader) asserts, this alleged wielding of the "nuclear option" -- the cutting off of otherwise unlimited debate in the Senate --  might threaten the precious checks and balances of constitutional government.  But McConnell weeps alligator tears.

Reid proposes only to modify but not eliminate filibusters of the type memorialized by Jimmy Stewart in Mr. Smith Goes to Washington, where a steadfast minority of senators speak from the well and address the "World's Greatest Deliberative Body" without respite.  Majority Leader Reid would merely reverse the more recent relaxation of the filibuster that allows a senator to express the intention to filibuster, thereby requiring a 60-vote majority to invoke cloture (a call to vote on a pending bill).  Reid would make changes that -- as Washington Post reporter, Ezra Klein, notes -- are "not dramatic":
[Sen. Reid] wants to be able to make the motion to debate a bill -- but not the vote to pass it -- immune to the filibuster; he wants the time it would take to break a filibuster to be shorter; and he wants whoever is filibustering to have to hold the floor of the Senate and talk.
Klein also suggests:
None of these changes would alter the basic reality of the modern U.S. Senate, which is that it takes 60 votes to get almost anything done. In my view, that means they wouldn’t do much to fix the Senate at all. (Emphasis in original.)
His assessment is too pessimistic. With just a bit more tweaking of the filibuster, say, by ending debate on a vote of 57 senators, gridlock would be reduced.  Furthermore, with such a change, the sway of the swing vote -- just as in the Supreme Court where Justice Anthony Kennedy carries great clout -- would minimize polarization.  It would also promote greater compromise and empower moderates of the minority party and independents. 

We no longer live in the time of Lincoln when robust Senate debate was witnessed merely by the eyeballs in the Gallery or readers of limited-circulation newspapers. Social media spreads audio, video and text of Senate proceedings in real-time around the globe.  Consider, for example, the favorable reaction to Sen. Bernie Sanders' "The American People are Angry" speech railing against income inequality in 2010 that quickly went viral.
Consider also the role that popular outrage at the endorsement of such inhumane policies as self-deportation and "attrition through enforcement" played in marginalizing the GOP and the anti-immigration fringe in the last election.  Just as wide publication of these anti-immigration sentiments led growing numbers of Latino and minority voters to feel disrespected and to reflect their displeasure in the voting booth, xenophobic oratory by senators droning on for hours, while their views and videos are tweeted in real time, will cause public opinion to register support for comprehensive immigration reform (CRI).

Without a softening of the filibuster rules, we're likely to witness, as we already have seen, the resuscitation of previous small-bore CRI proposals that merely traded legalization with a path to citizenship and modest future flows of temporary workers for greater border and worksite enforcement.  While these measures are necessary in any CRI bill, they don't go nearly far enough to address America's 21st Century needs. As NAFSA, the Association of International Educators, recently noted:
In the acrimonious political debate about immigration reform, we lose our way by embracing a mistaken, zero-sum approach to permanent immigration. Proposals like H.R. 6429 [providing expedited green cards for students with STEM degrees but eliminating the Diversity Visa lottery -- a measure opposed by the President ] in this context appear guided by the fear of doing anything that increases the number of people who may immigrate to the United States. There is no reason to regard the current annual limit on the number of green cards as sacrosanct law.
At a time when Republicans are trying to cut out the Diversity Visa lottery and its 55,000 annual green cards, America faces the lowest birth rate on record and an aging population.  Cities like Detroit face bankruptcy unless infusions of new immigrants with their innovations and investments are welcomed through reforms of the immigration laws.  Skilled immigrants matter. So do "Immigration Entrepreneurs." But America's outmoded visa quotas, pulled from thin air rather than derived through empirical evidence, demoralize and dissuade intending immigrants.  Just as pressing, cross-border families deserve the most important of family values, the right to live together, free of heartless, quota-induced separations.

Republicans are searching the wilderness in three camps seeking a principled immigration policy.  One group remains full-throatedly opposed, like Mark Krikorian, dubbed an "anti-immigration scholar/kook" by Salon's Alex Pareene; another proposes miserly, piecemeal reforms like the Achieve Act, which would be a stricter DREAM Act with no path to citizenship (other than the second class variety); and a growing number favor CRI.

An improved set of filibuster reforms, while still protecting minority rights, might just peel off enough moderate Republicans to enact America-friendly CRI.  Go Harry Go!
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