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An Immigration Opportunity Lost: USCIS Stiffens on Job Flexibility

12/13/2015

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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[Blogger’s Note:  This post is submitted as a necessarily-lengthy formal comment to the November 20, 2015  draft guidance of U.S. Citizenship and Immigration Services, PM-602-0122, interpreting the phrase, “the same or [a] similar occupational classification” as used in the “increased job flexibility” provisions of Immigration and Nationality Act (INA) §§ 204(j) and 212(a)(5)(A)(iv). This comment incorporates by reference the content of all hyperlinked words and phrases below.  [By email: ope.feedback@uscis.dhs.gov
[Attention:  Hon. León Rodriguez, Director, U.S. Citizenship and Immigration Services
[SUBJECT: Comment of Angelo A. Paparelli to Draft Policy Memorandum PM-602-0122, “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Job Portability, Immigration and Nationality Act (INA) §§ 204(j) and 212(a)(5)(A)(iv), ” as provided in Public Law 106-313, the American Competitiveness in the 21st Century Act (AC21).]


An Immigration Opportunity Lost:
USCIS Stiffens on Job Flexibility
A frisson of fear coursed through me when I learned that U.S. Citizenship and Immigration Services (USCIS) would issue new policy guidance on “job flexibility” — the statutory right of some long-patient green card applicants to change jobs or careers within the same or a similar occupational classification.   Congress introduced this limber possibility in the American Competitiveness in the 21st Century Act (AC21), S.2045 , at a time when the legacy agency, the Immigration and Naturalization Service (INS), still held sway over immigration-benefits decisions.
The better way — APA Notice-and-Comment Rulemaking.  In lieu of USCIS policy guidance, my strong preference would have been that the successor immigration agency pursue notice-and-comment rulemaking under the Administrative Procedure Act (APA). I worried that the more relaxed exercise of issuing draft policy guidance and inviting public comments would become yet another sad episode in the continuing manifestation, particularly in the last ten years, of America’s new form of extra-constitutional government, the Administrative State. Increasingly, the Administrative State — a form of government by bureaucracy “under which [federal] administrative agencies are able to push policy toward their preferences rather than being wholly faithful to their legislative principals” — has become the unwelcome default mode of lawmaking and governance in this era of Congressional impasse.
The Road to Good Intentions. As USCIS forecasted in November 2014 (Item 4 in its list), the forthcoming interpretation would “[p]rovide clarity on adjustment [of status] portability [in order] to remove unnecessary restrictions on natural career progression and general job mobility [and] provide relief to workers facing lengthy adjustment delays.” (Emphasis added.) Despite these soothing words, I foresaw that an admittedly informal “flexibility” practice that had worked reasonably well under a generally relaxed interpretation announced in a series of five agency advisories, e.g., here and here, would ossify in the hands of the current crop of policy formulators at USCIS’s headquarters.  Unfortunately, these fears have come home to roost. As this blog post and comment will show, the November 20, 2015 draft guidance, PM-602-0122, is as stiff and lacking in vitality as a corpse in rigor mortis.
The Pre-AC21 Status Quo. When Congress enacted AC21, it added two provisions promoting “job flexibility” for long-delayed adjustment of status (green card) applicants.  In doing so, the House and Senate tipped their hats to Buddha’s fundamental Law of Impermanence, the precept that, over time, stuff happens. In other words, as William Gladstone, the noted British statesman, reportedly said, “justice delayed is justice denied.”
Congress knew when it passed AC21 that INS decisions on employment-based applications for adjustment of status, the benefit of gaining green card status while in the U.S., were taking far too long.  In a predecessor bill to AC21, the “Immigration Services and Infrastructure Improvements Act of 2000”  (S. 2586), Senator Dianne Feinstein, its lead author, along with several other senators, acknowledged what immigration stakeholders of the era had long known:

[Section 2](a) Findings.–Congress makes the following findings:
. . .
(3) The processing times in the Immigration and Naturalization Service’s other immigration benefits [cases, i.e., other than naturalization applications] have been unacceptably long. Applicants for family- and employment-based visas are waiting as long as 3 to 4 years to obtain a visa or an adjustment to lawful permanent resident status.
(4) In California, the delays in processing adjustment of status applications have averaged 52 months. In Texas, the delays have averaged 69 months. Residents of New York have had to wait up to 28 months; in Florida, 26 months; in Illinois, 37 months; in Oregon, 31 months; and in Arizona, 49 months. Most other States have experienced unacceptably long processing and adjudication delays. (Emphasis added.)

Clearly, Congress recognized when including in AC21 a “Title II” (also entitled, the “Immigration Services and Infrastructure Improvements Act of 2000”) that agency processing delays were forcing indentured adjustment applicants to wait years longer than the targeted 180-day period in the new law’s job-portability provisions:
[Sec. 202](b) POLICY.--It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, . . .
SEC. 203. DEFINITIONS.
In this title:
(1) BACKLOG.—The term ‘‘backlog’’ means, with respect to an immigration benefit application, the period of time in excess of 180 days that such application has been pending before the Immigration and Naturalization Service.
 (2) IMMIGRATION BENEFIT APPLICATION.—The term ‘‘immigration benefit application” [includes] any application . . . to . . . adjust . . . status . . . under the Immigration and Nationality Act. (Emphasis added.)

Thus, the 106th Congress that enacted AC21 clearly knew about inordinate green card delays when it provided “job flexibility” relief to beneficiaries whose adjustment of status applications had been “long pending” — meaning those remaining unadjudicated for more than 180 days.  Thus, it allowed a worker (sponsored for a green card in any one of four employment-based immigrant visa preference categories) to change jobs or employers after the adjustment application had been pending more than six months.  The only AC21 condition imposed, however, is that the new position must be in the “same or [a] similar occupational classification” as the one described in the employer’s labor certification application or immigrant visa petition.
Need for a Regulation. Undoubtedly, publishing a proposed USCIS regulation and allowing formal comment from stakeholders before finalizing the rule would be a welcome approach.  To be sure, prior agency guidance left a few lingering ambiguities requiring clarification and did not establish procedures which could and should be formalized in the rulemaking process.  For example, some adjustment applicants probably remained tethered unhappily to Employer #1 because they feared that USCIS might disagree about job similarity and refuse the long-awaited green card.  Moreover, as I proposed in “‘Parting is Such Sweet Sorrow’: Musings on Adjustment of Status Portability” (Musings), Employer #2 gets a windfall, the hiring of an incipient permanent resident already granted open-market authorization pending the adjudication of the adjustment application.  But Employer #2 might still lose if costly training which it provided is wasted or its project engagements are impaired by an adverse USCIS adjudication on the same-or-similar-job issue.  Even worse, Employer #1 — the firm that did the heavy trudging through the red tape and suffered the time required to traverse trap-laden Department of Labor (DOL) and USCIS rules, incurring legal fees and other costs  en route — becomes collateral damage in the war for talent as it loses the services of the the porting worker.
The Equitable Solution — Cell Mitosis. APA rulemaking could thus provide necessary equitable relief to all three deserving parties (the adjustment applicant and Employer #1 on the one hand, and Employer # 2 on the other) by adopting some variant of the “cell mitosis” theory I proposed in Musings.
Just as cells dividing through mitosis inherit cellular DNA, pipeline immigration benefits could likewise be “inherited.”  If mitosis principles were to be applied, the porting employee and Employer #2  would win because their cellular “inheritance” endows green card status, and in an increasingly overheated labor market, the employment of an in-demand worker.  But Employer #2 should not lose everything, given that the DOL’s test of U.S. worker unavailability for the position in question had already been passed.  Instead, Employer #2 could “inherit” (a) the earlier “priority date,” the place in the immigrant visa waiting line, which Employer #1 had reserved for the departing worker, and (b) the right to petition for a comparably qualified non-citizen candidate to fill the same, now-vacant job and to help the new hire and his or her immediate relatives gain green cards through adjustment of status.  Thus, subject to any waiting period in the green-card queue and the same numerical limits of the immigrant visa quota, the porting employee, his or her equally qualified substitute, and Employers #1 and #2, would ultimately gain salutary immigration benefits.  Why? Because they earned them under AC21 and a flexible, job-flexibility final regulation — a rule well within USCIS’s regulatory authority to prescribe.
To those at USCIS or elsewhere who might argue that Employer #2’s “inheritance,” as I’ve described it, would contravene the DOL regulation, 20 CFR § 656.12(a), prohibiting the “offer [of an approved labor certification] for sale, barter or purchase by individuals or entities,” this blogging promoter of applying mitosis principles in the immigration ecosphere would respond that that horse has already left the barn.  In practical effect, AC21’s portability provisions already refute the DOL notion, also espoused in § 656.12(a), that an approved labor certification is not “an article of commerce.” The statutory and commercially-valuable right of adjustment portability effectively permits Employer #2 to “purchase” (though a “same or similar” job offer accepted by the porting worker) the intangible proprietary right to employ the individual as long as s/he has secured the interim adjustment benefit of a USCIS-issued Employment Authorization Card or another form of work permit.
The Need for Transparency. An APA-compliant proposed rule would also make all stakeholder comments publicly accessible on Regulations.gov, and USCIS would be required to elucidate in writing its rationale for accepting some suggestions and eschewing others. This transparency is unlike the current USCIS practice which provides no access to public comments and no explanation of why stakeholder proposals to change draft guidance were accepted or rejected in the final policy.  Regrettably, this behind-the-walls process of willful obscurantism is likely to apply to the finalized USCIS adjustment-portability policy once the comment period for the November 20, 2015 draft guidance (the Draft) expires on January 4, 2016.
What’s Wrong with the USCIS Draft Memorandum? As a partial remedy to the agency’s opaqueness in declining to publish stakeholder comments on job-flexibility, this blog lists several objections and suggest improvements to the Draft:

1.  The Draft ignores AC-21’s legislative history of abhorrence to immigration case backlogs and the resulting need for job flexibility.  As noted above, Congress clearly saw and tried to mitigate the interrelated problems of bureaucratic delays and the likelihood of changed circumstances.  Delays in adjustment processing had grown unreasonably — up to as long as 69 months.  To lessen the foreseeable risk that changed job circumstances would cause the loss of green-card eligibility, Congress enacted a law which — in the words of USCIS quoted above — would ” [(1)] provide clarity on adjustment [of status] portability[,] [(2)] remove unnecessary restrictions on natural career progression and general job mobility, [and] . . . [(3)] provide relief to workers facing lengthy adjustment delays.”
2.  The Draft cherry-picks an especially strict definition of the word, “similar,” which AC21 left undefined.  Although the USCIS cites Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2002-03 (2012), for the principle that “when a term goes undefined in a statute, an agency ordinarily should ‘give the term its ordinary meaning,'” its proffered Draft violates the “ordinary meaning” principle.  The Draft opts for the online version of a British dictionary, the Oxford English Dictionary (OEM), publicly inaccessible except by paid subscription, which apparently defines “similar” as “having a marked resemblance or likeness.”  USCIS also cites the second definition of “similar” in the American online dictionary, Merriam-Webster.com (MW), to mean “alike in substance or essentials”  — a definition clearly less restrictive than the OEM‘s “marked resemblance” formulation.  The Draft does not explain, however, why it omitted MW‘s first definition of “similar,” to wit, “having characteristics in common : strictly comparable [emphasis added].”  Perhaps the omission is an example of the Administrative State where agencies “push policy toward their preferences.”  This stricter definition, however, would contravene the Supreme Court more recent application of the rules of statutory construction, Utility Air Regulatory Group v. EPA, a 2014 decision which restricted administrative-agency interpretations of statutes in the following words:

Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,  . . . we presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity. The question for a reviewing court is whether in doing so the agency has acted reasonably and thus has “stayed within the bounds of its statutory authority.” . . . .
Even under Chevron‘s deferential framework, agencies must operate “within the bounds of reasonable interpretation.”  And reasonable statutory interpretation must account for both “the specific context in which … language is used” and “the broader context of the statute as a whole.” Robinson v. Shell Oil Co.  A statutory “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme … because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”  Thus, an agency interpretation that is “[inconsistent] with the design and structure of the statute as a whole,” does not merit deference. (Citations omitted; emphasis added.)

Instead of requiring the stricter showing of “marked resemblance,” USCIS should give the phrase, the “same or similar occupational classification,” its ordinary meaning, namely that a job would be “similar” to another if the subject matter expertise required in each of the two jobs, or the stated duties, skills and qualifications, are fairly “comparable.”   Thus, the Shakespearean comparison (“Shall I compare thee to a summer’s day?”) would not withstand a reasonable “comparability” analysis, but an engineer employed in a huge multinational enterprise who morphs in today’s gig economy into a self-employed engineering consultant or a professor of engineering seeking multiple teaching assignments, in most cases should (not the permissive “may” in the Draft) be accorded AC21 job-flexibility benefits.
3. The Draft misapplies and gives undue probative weight to the DOL’s Standard Occupational Classification (SOC) system — a complicated, arbitrary and abbreviated composite of occupational classifications not developed for the legislative purpose of AC21 job-flexibility analysis.   Rather the Labor Department’s Bureau of Labor Statistics (BLS) intended the SOC to permit statistical analyses for use by “Federal statistical agencies to classify workers . . . for the purpose of collecting, calculating, or disseminating data.”   As the BLS explains the SOC system, however, its shortcomings for immigration adjustment job-flexibility analysis becomes apparent:

All workers are classified into one of 840 detailed occupations according to their occupational definition. To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together.
Although the Draft treats the SOC like a veritable Code of Hammurabi, or revered totem (“this memorandum instructs [Immigration Services Officers] on how they may use the [DOL’s] . . .SOC . . . codes”),  USCIS should not prescribe it as the exclusive source of job-similarity comparisons.
4. The Draft fails to offer reasonable alternatives to the SOC.  USCIS should offer a variety of alternative ways in which job-similarity, with the SOC listed as merely one of other acceptable measure of comparability, can be established by the “preponderance of the evidence” standard of proof.  For example, given that USCIS views the DOL as authoritative in the evaluation of job comparisons, then the AC21 flexibility analysis should also allow use of the Labor Department’s easily applied  “substantially comparable” job or position test used in 20 CFR § 656.17(i)(5)(ii) of its PERM labor certification regulation:

A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
The application of a “substantially comparable” or the equivalent “more than 50%” rule is already familiar to Immigration Service Officers who must routinely apply this test in many other visa categories.  Consider the L-1A nonimmigrant and EB-1(3) tests for intracompany or multinational managers or executives whose employer must show that the foreign candidate has been and will be “primarily” engaged in managerial duties or executive responsibilities.  Similarly, treaty-based E-1 visa applicants must show that the treaty national or entity is “principally”engaged in trade of goods or services between the treaty country and the United States.  USCIS interprets the adverbs, “primarily” and “principally,” as requiring a greater than 50% bright-line test.  Indeed, the “preponderance of the evidence” test applicable in virtually all immigration-benefits decisions is itself a “more than 50%” test.  Furthermore, the “substantially comparable” test is much more easily and quickly decided than the abstruse SOC system.  As 20 CFR § 656.17(i)(5)(ii) notes, the “substantially comparable” measure “can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.”
5.  The Draft expressly supersedes all job-flexibility discussions in five prior INS and USCIS advisories.  By revoking prior guidance, the Draft makes it uncertain whether earlier pronouncements allowing self-employment as an approved basis for adjustment portability, holding that multinational managers or executives can port and/or disregarding as irrelevant any issue of whether Employer #2 can satisfy the otherwise applicable standard of “ability to pay” the wage stated in the labor certification or immigrant visa petition will reappear in the final job-flexibility policy guidance.
6.  The Draft offers no explanation of procedures to tee-up the granting of a request for adjustment of status job-flexibility benefits.  Given the Draft’s revocation of the prior adjustment portability policy memos, USCIS fails to say whether the usual way to invoke adjustment portability — the adjustment applicant’s submission, after having ported, of a letter from Employer #2 demonstrating job similarity — will continue to be required.  The Draft also offers no clue whether USCIS will establish, before a porting occurs, a form-based process for the adjudication of a prospective change of job or employer.  Clearly, USCIS should obviate the need for the current bet-the-green-card procedure whereby the adjudication of job similarity is only available after a change of job or employer has already occurred. Hence, the Draft’s lacunae of guidance on procedures and its dubious over-reliance on the SOC makes job moves by the adjustment applicant still the risky business it has always been.

* * * * *
President Obama and USCIS deserve praise for their desire to help adjustment applicants change jobs or employers more freely.  Unfortunately, however, the agency’s chosen vehicle of movement — an unduly cramped interpretation of AC21’s job flexibility provisions, coupled with its unwarranted fixation on the SOC — will freeze in place AC21’s intended beneficiaries and thereby impair the virtuous economic goal of enhanced worker mobility.  The USCIS should scrap the Draft and publish a proposed job flexibility regulation.
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Worksite Harmony and the President's Executive Actions: It's All About Immigration Timing

12/3/2014

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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“Politics at bottom is not all that complicated. It’s all about timing.” Mark McKinnon

Facing a recalcitrant House of Representatives controlled by Republicans, President Obama made an historic announcement on November 20th outlining an array of executive actions he would take to fix as much as he could of our broken immigration system.

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees. But this won’t happen for up to six months.

Meantime, a dispute has arisen among Republicans about whether Congress has the power to prohibit USCIS from processing deferred action cases by starving the agency of funds. The House Appropriations Committee maintained in a statement that the Congress is powerless to prevent USCIS from financing the cost of implementing the deferred action program and according benefits through user fees:

The primary agency for implementing the President’s new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the ‘E-Verify’ program. Therefore, the Appropriations process cannot be used to ‘de-fund’ the agency. The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.
Senator Jeff Sessions (R-AL) disagrees and is reportedly brandishing a Congressional Research Service (CRS) opinion letter described, but not released, by the far right blog, Breitbart, which suggests that Congress can bar appropriated funds, including user fees, from being deployed in a way that contravenes a statute. The actual CRS report, available here, provides:
A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds. (Footnote omitted; emphasis added.)
The CRS report did not mention, however, that the Immigration and Nationality Act (INA) already contains “a permanent appropriation in an authorizing act,” INA § 286(m), 8 U.S. Code § 1356(m), which states in relevant part:
Immigration examinations fee account.–Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: Provided, however, . . . That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected. (Emphasis added.)
According to a former senior Executive Branch official who helped me confirm the government’s interpretation of INA § 286(m), this provision has historically been construed as a “permanent, indefinite appropriation” of funds for USCIS to operate its adjudication functions through user fees. This is confirmed by the White House and USCIS in guidance offered during the 2013 government shutdown. The requirement in INA § 286(m) that “adjudication fees” be designated “in regulations” by the Attorney General (now USCIS, since the passage of the Homeland Security Act) is satisfied by regulations found at 8 CFR § 103.7 (b)(1)(i)(C)(Biometric Fee of $85), 8 CFR § 103.7 (b)(1)(M)(3)(Application for Advance Parole [international travel permission] fee of $360), 8 CFR § 103.7 (b)(1)(HH)(Application for an Employment Authorization Document fee of $380), and 8 CFR §274a.12(c)(14) (allowing issuance of an Employment Authorization Document to persons granted deferred action).

So as USCIS readies itself to accept a flood of new applications for deferred action, and work and travel permits, the agency has already announced that the affected class would not be allowed to file their applications until later in 2015, and must wait even longer before final action is taken:
Q4: How long will applicants have to wait for a decision on their application?

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it. (Emphasis added.)
Another executive action approved by the White House — one that can be implemented relatively quickly — is the formation of an “Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.” Headed by the Labor Department, the group will include the National Labor Relations Board, the Equal Employment Opportunity Commission and the Departments of Justice and Homeland Security. Presumably, the Justice Department’s role will be filled by the Office of Special Counsel for Unfair Immigration Related Employment Practices, and Homeland Security’s participation will likely be led by U.S. Immigration and Customs Enforcement and its unit, Homeland Security Investigations.

Unlike the newly-announced but slow-to-arrive immigration benefits for the undocumented, the working group can conceivably be up and running and start enforcing immigration and employment law sanctions at America’s worksites as quickly as the ink is dry on any updates to cross-memoranda of understanding (MOUs) between and among the group’s members, such as the December 7, 2011 Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites and the MOU between DOJ and the NLRB.

There’s an obvious problem, however, with the slow grant of work permits to the undocumented and the much quicker enforcement of worksite violations. The President did not announce a deferral of enforcement of the Immigration Reform and Control Act of 1986 — the Reagan era law and later amendments which sanction businesses that employ workers whom the employer knows lack employment authorization (IRCA’s § 101) or who commit unlawful acts of immigration-related discrimination (IRCA’s § 102).  It did not even issue a memo similar to the agency guidance offered in 2001 which gave employers a hint of modest relief when sponsoring undocumented workers for labor certification to gain “245(i)” benefits under the LIFE Act. Thus, employers are still at risk if they become aware that any undocumented workers are planning to apply, or have applied, for benefits under the new executive actions on immigration.

Imagine the scene at the company lunchroom. A group of obviously jovial workers are huddled together at a table filling out USCIS applications for benefits under the DACA (Deferred Action for Childhood Arrivals) or DAPA (Deferred Action for Parental Accountability) program. Bert Busybody, the director of HR, walks by and asks them why they are so gleeful. In unison, they reply, “because President Obama is allowing us to work legally.” Arguably, these workers must now be terminated from employment since Bert, as a supervisory representative of the employer, seems to have actual knowledge of the workers’ unauthorized status.

This type of worksite disharmony can be avoided if USCIS and the Homeland Security Department take appropriate action right away.  As my colleague, Tony Weigel, has suggested to me, the Secretary of Homeland Security, Jeh Johnson,  has authority to resolve this dilemma and allow interim employment authorization while USCIS adjudicates applications for deferred action and three-year work permits.  The Secretary could merely hold that the issuance by USCIS of a receipt for a non-frivolous (meaning “patently without substance”) request for deferred action and work permission would constitute an interim document of employment authorization (say, with only six months’ validity) and a List C document for I-9 purposes under the following regulation:
8 C.F.R. §  274a.12(a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs . . . (a)(10)-(a)(15) . . . of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States. . . . .

8 C.F.R. § 274a.12(a)(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive.
There is abundant precedent for such a flexible approach in situations where the government is not in a position to grant work authorization quickly.  For example, because USCIS cannot speedily confer new grants of employment authorization to certain beneficiaries, e.g., holders of Temporary Protected Status (whose work permits are extended merely by publication of a notice in the Federal Register [see Form M-274, "Handbook for Employers," pp. 13-14]), and conditional permanent residents who are allowed to work based on issuance of a receipt while awaiting an adjudication of a petition requesting the removal of conditions on residence under the marriage-based green card provisions or the EB-5 immigrant investor category.

If this flexible solution is adopted, the only remaining problem is the gap period from now until the date when USCIS is ready to allow filing of new immigration-benefits requests by the undocumented who believe they qualify under President Obama’s executive actions.  The solution can be found in an embrace of the President’s sentiments espoused on November 20th:
Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger — we were strangers once, too. My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too.
Thus, under the same abundant legal authority for prosecutorial discretion that the White House Office of Legal Counsel and a bevy of legal scholars confirmed, the Secretary of Homeland Security should announce a temporary, six-month deferral of enforcement of employer sanctions arising under IRCA § 101 (INA § 274A; 8 U.S. Code § 1324a)  – the provision punishing I-9 paperwork violations and the employment of persons whom the employer knows lack work permission — with exceptions for human traffickers and felonious harborers under INA § 274 (8 U.S. Code § 1324a) .

Having spoken so eloquently about “the determination of immigrant fathers [and presumably, mothers] who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids,” the President should take the next step and offer real-world, flexible solutions to IRCA-induced workplace disharmony, measures that would avoid financially endangering families by government-mandated terminations of employment as they prepare to “come out of the shadows and get right with the law.”
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Why We All Should Be Mad About the H-1B Visa Cap

4/10/2014

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

The USCIS announced today, April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B regular cap and the  20,000 additional cap for graduates with advanced degrees from US universities. This is much more than the 124,000 H-1B visa petitions the USCIS received in 2014. The H-1B cap makes no sense, and here are 10 good reasons why we should all really be more upset about it this year for the simple reason is that we face the cap each year, and nothing ever changes. Enough is enough!

The first reason to be mad about the H-1B cap is that it forces employers to scramble way before the start of the 2015 fiscal year, which is October 1, to file for H-1B visas, only to get rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in legal and filing fees, along with all the steps they need to take in being in compliance. The whole concept of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style of lottery into the process, just rubs salt into an oozing old wound.

Second, one can only feel for all the foreign national prospective employees, who all need to qualify to work in a specialty occupation, as defined under the H-1B visa law. Out of the 172,500 H-1B cases received, 87,500 people will get rejected. That is 87,500 hopes and dreams dashed. Many who are in the United States after graduating from American universities may have to leave. Others won't be able to set foot into the United States to take up their prized job offers.

Third, imagine if all of these 87,500  who will be rejected could  actually come and work in the United States. Their employers would benefit and become more globally competitive - and could have less reason to outsource work to other countries. They would have also been productive workers, and spent money in the US economy, including buying houses and paying taxes. The H-1B cap has robbed the economy of this wonderful cascading effect.

Fourth, the USCIS has taken pains to encourage entrepreneurs to establish startups in the United States because of the potential of creating new technologies resulting in more jobs,  and keeping the country competitive. The entrepreneur portal encourages entrepreneurs to use the H-1B visa to sponsor themselves through their own startups. What a pity to lose out on that entrepreneur who could create the next Google or Tesla electric car.

Fifth, immigration attorneys and their staff who toiled away hard for the past few weeks will feel really bad for their clients, and also for themselves that their labor will not come into fruition.

Sixth, people who have lost the lottery will try to come to the United States under other options, which are much harder. They may also resort more to the B-1 business visa, and although the business visa is ambiguous enough to cover activities that go beyond a business meeting, many will fall afoul of the visa wittingly or unwittingly. Using the B-1 visa when the H-1B visa is not available is like engaging in risky unprotected sex. People will get into trouble at some point in time and the party will be over.

Seventh, the While House very recently announced that it would allow a limited number of spouses on H-4 visas the ability to work. The whole purpose is to encourage highly skilled people to work in the United States on H-1B visas. What is the purpose of such an announcement when the cap eliminates the ability of people to enter the United States on H-1B visas in the first place. It all feels like a joke, rather like flatulence, on this day when it was announced that 172,500 people applied for a meager 85,000 visas.

Eight, even the lucky ones who have gotten selected are by no means guaranteed that their H-1B cases will get approved. The USCIS applies rigidly impossible standards, and also reviews the cases unevenly, the California Service Center being far more cruel than the Vermont Service Center. And even those whose H-1B visa petitions get approved may not be issued visas at the US Consulates overseas, especially consuls in India who use the visa process as a trade barrier to curb the flow of Indian IT professionals from making it to the United States.  Then, those who finally make it will also likely get subjected to oppressive green card quotas down the road.

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Immigration Reform -- A Glossary of Terms as Used by Both Sides

7/11/2013

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Charles Kuck, ABIL President
Musings on Immigration

One of the striking things about reading hundreds of newspaper articles about "immigration reform" with thousands of quotes from politicians is the amazing misuse of words and phrases that form an essential part of the debate.  To aid you in your understanding of the immigration reform debate, here are definitions of the key words and phrases, as used by the different side,s on this very important issue.
Word/Phrase

Immigration Reform






The Senate Immigration Bill















DACA/Deferred Action for Childhood Arrivals







DREAMers








Amnesty








Border Security










“Back of the Line”












E-Verify
Senate Democrat and GOP Meaning

Our current legal immigration system is broken and is in need of a complete review and rewrite to ensure the future competitive economic advantage held by the United States as a nation of immigrants.

The Border Security, Economic Opportunity  and Immigration Modernization Act of 2013 BSEOIMA’s 1,198 pages are a virtual rewrite of thousands of additional pages of one of the most complex immigration systems on earth.  BSEOIMA attempts to enhance border security, hold employers accountable for undocumented hires, fix a terrible legal immigration system, create a future path for immigration, and deal with the 11 million undocumented people and their families humanely and justly.

Program put in place by President Obama in June 2012 to alleviate the political pressure he was receiving from undocumented students, brought here as children through no fault of their own, who seek a future opportunity in the only country they have ever known.

Those brought to the United States under the age of 16, educated here, and who have become American in every sense except for a piece of papers.  These kids will receive an expedited process to permanent residence under a stringent and detailed list of criteria.

Does not exist. Amnesty is complete forgiveness without recompense.  There is no Amensty in BSEOIMA.  Fines, delays, civic and language requirements, high filing fees and and a 10 year wait for full legal status ensure that there is NO forgiveness without recompense.

BSEOIMA increases the effectiveness of the Border Patrol, builds fences to deter illegal crossings, and calls for spending $46 billion dollars just on the border over the next decade.   BSEOIMA will significantly reduce the flow of undocumented immigration to the United States.



What line?  Today some relatives have an 24 year wait for a green card, and employers can wait up to 14 years to immigrate some employees.  BSEOIMA reduces backlogs, increases visa opportunities, creates a new start up visa, increases investment, rewards Masters Degree and PhDs with US Degrees in STEM fields, generally fixes the “line” and creates enormous economic benefit to the US.

A necessary part of immigration reform, requiring all US employers to verify the identity and work authorization of all new employees with an online federal government database run by the USCIS and Social Security Administration.  While error prone and time consuming, it is currently the only effective way to verify employment eligibility.
House GOP Meaning

An attempt by Democrats to create millions of new Democratic voters, and to destroy the foundation of America.



A Democratic attempt to pass an amnesty to reward lawbreakers and create open borders to allow the destruction of America.












President Obama’s attempt to curry favor with Latinos by offering a work permit to kids who should not be in the United States.  This program must be defunded. (NOTE:  There are no public funds used for this program).



“Brazen Self-Professed Illegal Aliens .  . . "







The Senate Immigration Bill.








A complete synthetic bubble around America that does not allow a single person into the United States without a visa, a background check, and a full body cavity search. This must be done before any consideration is given to fixing the broken legal immigration system.  (NOTE:  Ignores the fact that the broken legal immigration system causes illegal immigration).

Where immigrants should be who want to come to the US.  My relatives waited in the line three generations ago, these people can wait too.









The first step to a national ID Card.  Although some House GOP members do LOVE this idea! 
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A New Immigration Recipe: Specialty Chefs Need a Dream Act Too!

1/13/2013

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

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

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

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

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

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

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

A pioneering  authentic Thai restaurant in the Chicago area

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

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

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

An Armenian restaurant in a working-class New Jersey town

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

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

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

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

A Chinese restaurant in the northernmost county of Maine

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

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

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

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

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House GOP Says Immigrant Suffering Hurts Less Than Citizen Suffering

1/5/2013

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

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



There is only one group to blame for the continued suffering of these innocent victims: the House majority and their speaker, John Boehner . . . This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last night. Last night, politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch.
The object of their criticism was the House's failure to pass bipartisan legislation, already approved in the Senate, that would grant financial relief to victims of Hurricane Sandy. Their words, however, could apply with equal vehemence and accuracy to the House's other major year-end failure -- its refusal to vote on renewing and expanding the Violence against Women Act.

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

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

The House version that purported to reauthorize VAWA (HR 4970) would have harshly restricted the immigration-related protections of the law.  As the National Task Force to End Sexual and Domestic Violence against Women explains, there are several key failings of HR 4970:
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Section 801 eliminates crucial confidentiality protections for victims in the VAWA self-petition and cancellation of removal processes who are married to U.S. citizen or Legal Permanent Resident spouses. By requiring notification to the alleged abuser that his/her spouse has filed a VAWA self-petition, this endangers victims (many of whom may still be living with an abusive spouse since their options are extremely limited as a result of their undocumented status). It would also allow abusers to continue to manipulate the immigration process as a tool of abuse by providing them an opportunity to block her access to legal status. Additionally, it creates duplicative and unnecessary bureaucracy by dispersing VAWA adjudications from specially trained officers in a centralized unit, and increases barriers to

safety for vulnerable victims by imposing a stricter standard for approval of VAWA cases than for other forms of humanitarian relief under immigration law.

Section 802 imposes arbitrary and unreasonable barriers for victims, and undermines the law enforcement purpose of the U visa, by narrowly restricting the circumstances in which law enforcement certifications can be issued.

Section 806 discourages crime victims from cooperating with law enforcement, especially in complex or dangerous criminal investigations or prosecutions, and eliminates stability for vulnerable crime victims by terminating their eligibility for permanent residence.

Section 814 burdens victims and existing state criminal court processes addressing domestic violence by discouraging plea bargaining. Because this provision will allow evidence outside the criminal conviction record in determining if someone is deportable due to a domestic violence conviction, it will be impossible for defendants to know whether to accept a plea. The resulting additional criminal trials will result in more victims being forced to face their abusers in criminal cases and most likely, more abusers who do not face any type of conviction when victims are fearful of appearing in criminal cases.

Sections 803 and 804 . . . omit critical amendments that were included in S. 1925 [the Senate bill] to prevent serial abuse and exploitation of so-called “mail-order brides” and other immigrating foreign spouses and fiancé(e)s of US citizens, as well as abuse of the visa system.
When the GOP hue and cry over Sandy burst out, John Boehner and Eric Cantor quickly took steps to make amends. On January 4, the House passed a bill (with the Senate also concurring) that set aside $9.7 billion in relief for regions that Sandy devastated. On January 15, Speaker John Boehner reportedly will bring up a vote for $51 billion more in Sandy relief measures, as requested by President Obama.

Where is the outrage over VAWA?  With Republicans claiming to have heard and now to understand the increasingly pro-female and pro-immigrant voices of the new electorate, the VAWA debacle suggests that the GOP is still clueless.  Are the "innocent victims" of domestic violence any less deserving than the post-Sandy constituents who will soon get relief?
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Channeling Peter King and Chris Christie, I say it is "absolutely inexcusable . . . absolutely indefensible" for the House GOP to have "walk[ed] away from [their] responsibilities. . ." to victims of domestic violence.  "This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last [week]. Last [week], politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch." America is a forgiving and tolerant nation -- to a degree.  The House GOP needs to wake up quickly, and pass a bill reauthorizing VAWA in the image and likeness of last term's Senate version.  Or else this party of "angry white guy[s]" will only hasten its flight to irrelevance.

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Will Immigration Electrify the Presidential Debates?

9/26/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Immigration has been dubbed the third rail of American politics, along with Social Security, Medicare, gun control, and a variety of other hot-button issues.  To me, it's more like a downed power line snaking low across the ground and electrocuting whomever fails to give it respectful attention. As the eyes of the nation turn to the first Presidential debate this Wednesday, will immigration supercharge the colloquy or -- as in years past -- be wholly ignored or disregarded as annoying static electricity? Will Candidate Romney repeat his offensively tone-deaf line, "I'm running for office, for Pete's sake, I can't have illegals"? 

Will President Obama be asked to explain why he waited so long, all along claiming a lack of authority to use his executive power to ameliorate immigration hardships, and then reversed course in the campaign's end-game as a seemingly craven political ploy to curry Latino votes?

No one knows what Jim Lehrer, debate moderator emeritus, will ask in the first debate?  A petition is circulating that implores him to "include immigration reform in the domestic policy debate."

Certainly there are many menu items in the candidates' recent campaign pratfalls, the parties' respective platforms and their Congressional antics that offer delectable interrogatory opportunities, as I suggest in these posts ("The Immigration Week That Was," "The GOP Position: Immigration under Glass," "The Democrats' Immigration Position: Better But Blemished," and "Immigration Buffets and Buffeting in Congress"), and in my recent LXBN interview:

While pundits handicap debate strategies, I offer a few more immigration questions for Mr. Lehrer to pose:
  • Governor Romney, do you think the federal government should tax employers $10,000 for each H-1B worker they sponsor?
  • President Obama, why should the American people believe your recent pledge to tackle immigration reform right away in your second term when you failed to honor the same commitment in your first term?
  • Governor Romney, your immigration advisor, Kris Kobach, has supported laws which reportedly have caused economic harm to states and localities adopting them.  What immigration measures would you adopt to spur their economies?
  • President Obama, your Secretary of Homeland Security has instructed Immigration and Customs Enforcement to treat LGBT couples as "family relationships" in removal proceedings, and your Justice Department no longer defends the Defense of Marriage Act.  Will you issue a regulation or executive order in your second term that authorizes the approval of same-sex, marriage-based immigrant visa petitions?
  • Governor Romney, the Mexican Government has accepted an American labor union claim that Alabama's anti-immigrant law (HB 56) violates a U.S./Mexico trade agreement.  How will a Romney Administration respond?
  • President Obama, why are 31-year-old and older DREAMers ineligible to file for DACA benefits?
Whatever the outcome of the debates and the November election, maybe all this electrifying talk about immigration is simply the wrong metaphor.  Americans seem far less troubled about immigration, according to a recent report from the Pew Research Center for the People & the Press:

Immigration is . . . less of a focus in 2012. In [our] new survey, 41% view the issue of immigration as very important – the lowest of 12 issues tested – compared with 52% in August 2008.
Maybe the best debate questions should therefore be posed to each of them:
  • What specific actions will you take to cattle-prod Congress into enacting comprehensive immigration reform?
  • Why won't you lead us, by solving, once and for all, our immigration challenges?
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Immigration's Hobgoblin: A Foolish Inconsistency

11/13/2011

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_by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Europe is at a tipping point.  Will the European Union be dashed on Greek or Italian shores.  Will France follow Greece and Italy in losing the esteem of bondholders? Will the EU revert to an Uncommon Market and again suffer its historic curse, a mash-up of competing and warring states whose citizens must proffer passports to cross borders and each time frequent the local moneychangers to buy or sell.  As this is written, European pols, especially those of the Teutonic variety, may well be mulling the words of Emerson, the American transcendentalist, in his essay on Self-Reliance:

A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. . . . Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.

America, however, learned the value of consistency in its infancy, first from Ben Franklin on signing the Declaration of Independence ("We must all hang together, or assuredly we shall all hang separately") and then in drafting a national constitution after the failure of the Articles of Confederation. Latin scholars and law students are taught consistency in the principle of stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." 

Judging from the surfeit of GOP presidential debates, the party of Lincoln is not too sure about consistency's value. Inconstancy is not solely a character trait of multiple-personality Mitt, the likely consensus nominee.  Rather, it informs each Republican candidate for the presidency of the 50 "united" states who, irreconcilably, proclaims the national freedom to bear arms yet encourages the states to go their separate ways on abortion and immigration. 

President Obama is no less immune to criticism.  The Deporter-in-Chief campaigned for a first term on comprehensive immigration reform.  When challenged for nonfeasance, however, he pleaded that he could not "wave a magic wand and make it happen". Yet by allowing Homeland Security officers to exercise prosecutorial discretion in immigration matters and issuing executive orders to ease the housing crisis, the burden of student loans, and soon healthcare deficiencies, he has acted unilaterally, saying "[w]e can't wait" for Congress to act.

So when is consistency a virtue and when is it foolish?  In matters migrational, consistency is virtuous when it leads to predictable and uniformly equitable results, when it achieves harmony and a general perception of even-handedness among stakeholders. It is folly when mistakes, consistently arising, are not recognized as such or are left to fester uncorrected.

PERM labor certifications should not take three months in one case and 27 in another (even if an audit ensues) -- the current range of DOL processing times, as I learned yesterday at the AILA California Chapters Conference in San Francisco.  A blanket L-1 visa applicant in Chennai should be just as deserving of her visa if an identically qualified blanket L-1 applicant is approved at a U.S. consulate elsewhere. An H-1B work visa petition for a small business approved at the USCIS Vermont Service Center should not be denied on virtually identical facts at the VSC's California counterpart (likewise the general consensus of panelists describing the regional-service-center status quo at the San Francisco AILA conference). 

The scheduling of merits hearings in removal cases should not take four years in Chicago and considerably less, sometimes mere months, in other U.S. cities (another AILA SF factoid). U.S. citizen spouses who enter the U.S. under the Visa Waiver program should not be welcomed with a green card throughout California, except in San Diego where the local field office facilitates their expedited removal (yet one more data point from AILA conference speakers).  A nationwide policy of prosecutorial discretion should be applied consistently to like cases nationwide, but regrettably they are not, as Julia Preston of The New York Times reports today ("Deportations Under New U.S. Policy Are Inconsistent").

Intellectually disingenuous nitpickery, moreover, should not be allowed to override the principle of consistency: If USCIS on five occasions recognizes an O-1 nonimmigrant as a person of extraordinary ability he or she should not be denied a first preference extraordinary-ability green card when the legal requirements to be classified as "extraordinary" are identical. 

Consistency creates what we lawyers call a "reliance interest."  Inconsistency in the rule of law creates unreliable, unpredictable chaos and loss of confidence in the future -- precisely the worst outcomes when economies worldwide are foundering.  As Google's CEO, Eric Schmidt said at a November 12 White House press briefing: "What business needs is predictability." So too do the American people, and the would-be Americans who seek uniformly interpreted and consistently applied decisions in like requests for immigration benefits.

Worse still is the foolish inconsistency practiced by the most ghoulish hobgoblins, the guardians of our immigration adjudications -- the distracted Executive Branch, the blind or indifferent overseers in Congress and the respective Secretaries and headquarters officials of the U.S. Departments of Homeland Security, State, Justice, Labor and Commerce -- who countenance the pervasiveness of their charges' deviant decisions.  Whether the problem is caused by overlooked insubordination below or deliberate insouciance above, immigration inconsistency is terrifying this Nation of Immigrators.
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Entrepreneurs in Immigration Residence Are Set to Occupy USCIS

10/29/2011

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The Occupy Wall Street movement began with a poster, a word cloud, a QR Code and three lines of text:

#OCCUPYWALLSTREET
September 17th. Bring tent.
www.occupywallst.org.

Steve Jobs launched his massively successful "Think Different" rebranding campaign for Apple in 1997 with a TV commercial and this script:

Here's to the Crazy Ones. The misfits. The rebels. The trouble-makers. The round pegs in the square holes. The ones who see things differently. They're not fond of rules, and they have no respect for the status-quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can't do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world...are the ones who do!

Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Service (USCIS), recently announced with the flourish of a press release an ingenious "Think Different" initiative that may well transform this vexed and vexing immigration agency.  His announcement heralded the new Entrepreneurs in Residence Program (EIR), an experiment that will tap the wisdom and experience of seasoned startup veterans to inject fresh air and fresh insights into USCIS.

The EIR, as the press release explained, "will utilize industry expertise to strengthen USCIS policies and practices" affecting foreign "investors, entrepreneurs and workers with specialized skills, knowledge, or abilities." As Director Mayorkas explained, the "initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth . . .  [with the] introduction of expert views from the private and public sector [which] will help [USCIS] to ensure that our policies and processes fully realize the immigration law's potential to create and protect American jobs."  A two-stage effort, the EIR begins as a "series of informational summits with industry leaders to gather high-level strategic input" and then the heavy lifting follows with the assembly of a "tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions."

The EIR occupation of USCIS cannot come a millisecond too soon.  Just like a Dream Act kid who keeps getting blamed for the mistakes of her undocumented parents, USCIS, only nine years old, keeps receiving many of the same brickbats that bombarded its ancestor, the former Immigration and Naturalization Service (INS).  Unlike the DREAMers, however, USCIS has magnified INS's peccadilloes and committed new more egregious ones of its own.  Ted Chiappari and I describe the venial and mortal sins of USCIS at length in our article, published last week in the New York Law Journal, "Intubation and Incubation Two Remedies for an Ailing Immigration Agency" (link courtesy of ALM Enterprises).

Whether intended or inadvertent, EIR is a deft stratagem, even more artful than Clintonesque triangulating.  Cleverness taken to the fourth degree, EIR, captured in one word, is all about quadrangulation.  If it is to succeed, EIR must task its occupiers to infiltrate and attack from within the four-sided challenge that is USCIS today: (1) the immigration stakeholder community and the USCIS Ombudsman clamoring for more user-friendly enhancements to fusty USCIS interpretations of work-visa eligibility, (2) the ever-campaigning President saying "we can't wait" for the enactment of job-creating legislation, (3) Socialism-incliningRepublicans in Congress, led by GOP commissars Smith and Grassley, who seem, counter-intuitively, to embrace immigration regulation more than job creation, and (4) the agency's anti-business, unionized adjudicators who prefer chaos theory over customer service.

Who will Director Mayorkas tap as the EIR's movers and shakers to prod, awaken, reeducate and redirect USCIS? As noted in the NYLJ  "Intubation/Incubation" article, ideally they should be "industry leaders" with just the right background:

[Entrepreneurs who] harbor a strong interest in an expansive reading of the employment-based immigration laws. Their likely interpretation would view the immigration laws as offering many opportunities to grow startup and established businesses in the U.S. by harnessing the innovations and skills of bright, energized and talented non-citizens. Prospective EIR participants with such interests and perspectives probably will have already used and intend to use again the employment-based immigration laws to secure USCIS's permission to hire foreign workers.

As the EIR experiment in intramural administrative sport begins, an October 29-30 Wall Street Journal editorial ("The Other Jobs Crisis") captured spot-on the immigration dysfunctions that beset America today. Migrant farm workers flee Alabama and Georgia, two states with nativist laws that cause produce to rot in the field. With few Americans willing to descend to back-breaking stoop labor, "incarcerated criminals" are dragooned to "work the fields." Republicans in Congress, the supposed "champion[s of] deregulation and business-led growth" focus on "immigration control" as "one of their main passions," while continuing "to ignore the economic costs" and the need "to overhaul the guest worker program to widen avenues for legal immigration."  Meantime, ironically on www.WSJ.com, GOP Presidential front-runner and pizza-chain turnaround artist, Herman Cain, callously rebukes the Occupy Wall St. protestors: "If you don't have a job and you're not rich, blame yourself! ... It is not a person's fault if they succeeded, it is a person's fault if they failed."

Like his Chief of Staff, Herman Cain is just blowing smoke.  He should know that not everyone can find a job in a nation with a 9.1% unemployment rate (but if Cain is truly "counter-factual" on the cause of U.S. joblessness, he is manifestly unfit for the presidency).  America desperately needs more job creators, the salutary byproducts of a functioning, business-friendly immigration system.  Since Congress will not act, and the President can't wait, my hope is that Director Mayorkas will install "demented" entrepreneurial occupiers of USCIS, "Crazy Ones" who "are crazy enough to think they can change" America by occupying his benighted agency.
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