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Transmission of American Citizenship Through Assisted Reproductive Technology - An Update

2/13/2014

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

“The journey of a thousand miles begins with a single step” Lao –Tzu, Chinese philosopher (604 BC-531 BC)

Ed. note – This article updates information from a previous piece, “Answer Man: Assisted Reproductive Technology and U.S. Immigration Law.”

The Department of State has announced a major and most welcome policy shift to facilitate the transmission of American citizenship to children born outside the United States using Assisted Reproductive Technology (ART). It will no longer be necessary in all such cases for the “mother “to have a genetic link to the child. The Department has happily now recognized that American mothers can pass on citizenship to children to whom they give birth regardless of whose egg was used for conception. The “mother” must be the legal mother at the time and place of the child’s birth and the gestational mother. Under the new State Department policy, the biological mother can either be the genetic or the gestational mother; the biological father can obviously only be the genetic father.  The State Department policy goes onto clarify:
If the child is biologically related to a US citizen father, but not to the father’s spouse, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to INA 309(a), and the father would have to meet the additional requirements of that section.  If the child is biologically related to a U.S. citizen mother, but not her spouse, the case would be treated as a birth out of wedlock to a U.S. citizen mother, and would have to meet the requirements of INA 309(c).  If the child is the biological child of both parents, and the biological parents are married to one another, INA 301 requirements would apply, including a requirement that at least one of the US citizen parents had resided in the United States prior to the child’s birth.
In addition, the State Department now views the child of a legally married lesbian couple as being “born in wedlock” if the baby is conceived from the egg of one mother and carried by the other.

Under the new policy, a US citizen mother who gives birth to a biological child abroad, including through a foreign surrogate (via her egg), can apply for a US passport and Consular Report of Birth Abroad. While the USC parent with the biological nexus should be listed on the CRBA, a second parent can be listed as well if they can document a legal relationship under local law.

It should be noted that this new policy is retroactive. In those instances where an immigration benefit was denied to the foreign-born child of a gestational and legal American mother, the parent should now submit a new application corroborated by probative evidence that they satisfy the substantive requirements of the new policy.

The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. While a genetic footprint will still be necessary for children born out of wedlock to American fathers under INA 309, it will no longer be required for citizenship claims in all other cases arising under INA 301 which is silent on the need for genetic parentage. The willingness and ability to understand parentage in the legal and gestational sense, as well as in the genetic sense, is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005) and, most recently, Gonzalez-Marquez v. Holder, http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/01/03/12-71861.pdf. In these cases, so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated,  the child did not need to prove that he or she was the biological child of his USC mother in order to acquire citizenship.  The Department of State, by allowing the transmission of citizenship through a gestational mother, has advanced the concept of family unity which is the organizing principle at the heart of our immigration system:
The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. While a genetic footprint will still be necessary for children born out of wedlock to American fathers under INA 309, it will no longer be required for citizenship claims in all other cases arising under INA 301 which is silent on the need for genetic parentage. The willingness and ability to understand parentage in the legal and gestational sense, as well as in the genetic sense, is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005) and, most recently, Gonzalez-Marquez v. Holder, http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/01/03/12-71861.pdf. In these cases, so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated,  the child did not need to prove that he or she was the biological child of his USC mother in order to acquire citizenship.  The Department of State, by allowing the transmission of citizenship through a gestational mother, has advanced the concept of family unity which is the organizing principle at the heart of our immigration system:
Solis-Espinoza, supra, at 1094.

For all of its manifest merits, however, this new policy does not go as far it we would like it to go. If there is no biological link, but the US citizen is still considered as the legal mother under local or foreign law, will the claim to citizenship be accepted?  It does not seem so, unless the mother was the genetic or gestational mother. It is certainly true that, if the mother is neither the genetic nor the gestational mother, but the sperm is that of the US citizen father, US citizenship can still be acquired under the out of wedlock provisions pursuant to INA 309. Yet, what if the father is a lawful permanent resident or perhaps a non-immigrant, while the mother is a US citizen who lacks a genetic or gestational relationship with the baby but nonetheless is the mother under the law of the country of birth? Under these slightly altered facts, there is no automatic transmission of citizenship. This should change.  The State Department is to be praised for recognizing that there need be no biological link but should a child be deprived of the priceless gift of citizenship simply because his or her US citizen mother is unable to bring them to birth due to a medical infirmity? Practically speaking, if the US citizen mother is able to carry the baby, but needs another female’s egg, there would be no reason to leave the USA and the child thus born in the US would be a birthright citizen. It is only when the US citizen mother cannot use her own egg or carry the baby to term that she needs to enter into an arrangement with a surrogate mother overseas. In such an instance, the citizenship of the child should not depend on the sperm donor father being an American citizen. As long as the law of the state or jurisdiction recognizes the US citizen mother as the child’s legal mother who is married to the father, that should be all that matters. Such a policy would be in accord with Scales and Solis-Espinoza.

 None of this detracts from the wonderful step that the State Department has made. Let us recognize and rejoice in this advance while we hope for further progress down the road. This is a long journey but the ART update is a milestone along the march. Thanks to the Department of State, the law on citizenship transmission is now far more aligned with modern science and contemporary social mores. No longer is it required that both spouses in a marital union be genetically related to their child as a condition of bring a citizenship claim under INA 301. Legal children born in wedlock now will have the same ability to acquire citizenship at birth as anyone else notwithstanding the continued relevance of genetics. Parents legally bound to each other and to their child under local or foreign law can now apply for a US Passport secure in the knowledge that their baby will not be left stateless. Same sex marriages will now enjoy the presumption of legitimacy for the conferral of citizenship that they have never known.

Not bad.

Authors’ Note: This comment is dedicated to the shining memory of Carmen DiPlacido, author of the Child Citizenship Act. To those who knew the pleasure of his company, the warmth of his friendship, the depth of his wisdom and the strength of his intellect, this is precisely the kind of change that Carmen would have championed, one that reflects equity and inclusiveness. He lived these values and this policy embodies them.
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The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government (Part II)

9/30/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Bloggers Note:  The second of my two-part blog post below first appeared in Seyfarth Shaw LLP's September 10 and September 12 "Employment Law Lookout" Blog]
The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government (Part II)
By Angelo A. Paparelli
As noted in our last post, American businesses which offer U.S. secondments to their executives, managers and specialists from affiliated entities abroad must take proactive measures to address several ominous developments adversely affecting the tried-and-true L-1 work visa category for Intracompany Transferees.

Even if a U.S. company can’t tell an L-1 from an elbow, concern over this visa category is important if the business engages the services of third-party vendors and service providers whose personnel to be stationed at the customer’s worksite must rely -- as is often the case -- for employment authorization under the L-1 visa category.

As will be seen, L-1 troubles are brewing everywhere.

I.          U.S. Citizenship and Immigration Services (USCIS).  This component of the Department of Homeland Security (DHS) recently issued a policy memorandum (“Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)”), reaffirming that decisions which are not designated as precedent should only “apply existing law and policy to a unique factual record in an individual case,” and “[do] not create or modify agency guidance or practice.” Despite this policy, USCIS adjudicators continue to follow the reasoning of the 2008 GST case, which clearly articulated new, highly restrictive L-1B specialized-knowledge criteria and rejected an established and workable policy memorandum on visa eligibility for persons seeking L-1B classification. 

On the L-1A front, a visa category for foreign executives and managers, USCIS’s responses have been unpredictable and mostly problematic.  Some cases are approved without objection, typically if the company is large and hierarchical in its operational structure, while other cases (especially for managers in companies with flat organizational management) trigger the issuance of a burdensome and time-consuming requests for additional evidence which, after submission of more documentation, are far too often denied.  When cases are rejected, the denial typically states that “[a]n employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.” 

The agency’s rationale might be legitimate if it were based on regulations in force before enactment of the Immigration Act of 1990 (the 1990 Act).  Today, however, regulations issued in 1991 implementing the 1990 Act’s liberalized definition of L-1A “manager” by creating the function manager classification and embodying Congress’s intent to modernize the L-1A category to make it more flexible.  See Brazil Quality Stones v. Chertoff, accessible here.

Of particular significance, the pre-1990 Act regulations contained (but the 1991 regulations omitted) an express bar to L-1A visa eligibility for “an employee who primarily performs the tasks necessary to produce the product and/or to provide the service(s) of the organization.”  The only reasonable inference to be drawn from this intentional excision from the rule is that to qualify for an L-1A, persons who primarily manage functions need not be engaged in the management of people.  Rather, exercising responsibility for a critical function of the organization (which may involve “primarily perform[ing] the tasks necessary to produce the product and/or . . . provid[ing] the service(s) of the organization”) is nevertheless deserving of L-1A classification. 

Employer Takeaway: Employers seeking to establish L-1A function manager visa eligibility should therefore make sure their immigration counsel outline the relevant rulemaking history when submitting a function-manager petition.

II.        U.S. Department of State and Consular Officers.  In Fiscal Year 2012, U.S. consular officers issued 134,212 L-1 visas.  With the exception of American posts in India, consular officers have generally been quite willing to issue both individual L-1 visas, based on petitions pre-approved by USCIS, and blanket L-1A and L-1B visas for companies designated by USCIS as high-volume filers. American employers have reported, however,  that L-1 visa refusals by American consular posts in India have increased dramatically since 2006.  The concern over L-1 visa refusals in India, particularly under the L-1B category, is troubling because Indian citizens account for a material percentage of L-1 visas issued worldwide, as well as for such visas refused.   

As I learned from a visit last month with consular officials at the American Consulate in Chennai, the high L-1 refusal rate is attributable to several factors:
  • The time available for each L-1visa interview, ranging from 1.5 minutes to 6 or 7 minutes, and averaging 3 minutes,
  • The consular officers’ focus on the oral response of the visa applicants to questions posed about the individual’s prior employment history and proposed U.S. duties, as well as inquiries into how the prospective employer obtained the contract to provide services in the U.S. (a consideration of commodity work based on low price for which specialized skills are not needed versus unique, value-added services),
  • The absence of time for consular officers to read much, if any, of the documentation submitted by the petitioning employer to demonstrate L-1 visa eligibility,
  • Strict adherence to current State Department L-1 visa guidance, which relies upon the non-precedent GST case, and
  • The consular officer’s application of the “clearly approvable” standard for blanket L-1 visa issuance, which is seen as far higher than the “preponderance of the evidence” (more likely than not) standard of proof applied by USCIS.
Employer Takeaway: Employers and customers of service providers who rely on access to L-1 workers should focus much more effort on preparing the visa applicant for the consular interview and perhaps less on supporting documentation which the consular officers may not have time to read, and which -- according to one vice-consul with whom I spoke -- include “cover letters [that] read like advertising materials.”

III.       The DHS Office of Inspector General (OIG).  At the request of Senator Chuck Grassley, the OIG last month issued a report, “Implementation of L-1 Visa Regulations,” which supplements a 2006 study, “Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program.”  The OIG’s 2013 report is based on information gleaned from statements of government officials and fails to interview external stakeholders in the business community.  The OIG found high potential for fraud and abuse in the L-1 visa program, but failed to investigate or assess the economic benefits to American employers and U.S. workers under the L-1 program.  Without offering a legal analysis, the OIG report sided with the AAO in its GST non-precedent decision, and offered numerous process recommendations to make L-1 visas harder to obtain and keep, including site visits both before and after L-1 petitions are approved -- a step USCIS has agreed to initiate.

Employer Takeaway: As noted, employers should consider placing less reliance on documentation and much more on preparing individuals applying for L-1 visas at American consular posts in India for foreseeable questions officers are likely pose during the interview.  Employers and customers of service providers who rely on access to L-1 workers should prepare for unannounced USCIS visits to company worksites by the agency’s Directorate of Fraud Detection and National Security (FDNS) to verify the representations made on visa petitions and applications.

IV.       Congressional Proposals.  Congress is also assailing the L-1 visa.  S. 744, the massive comprehensive immigration reform bill that passed the Senate over the summer, includes (among other restrictions) an entire section on L-1 visa changes that are patently more restrictive, “Title IV, Subtitle C—L Visa Fraud And Abuse Protections,” as described in the Senate Judiciary Committee’s section-by-section analysis (starting at page 141).  These proposed restrictions include: 

Section 4301. Prohibition on Outplacement of L Nonimmigrants. 

Section 4302. L Employer petition requirements for employment at new offices. 

Section 4304. Limitation on Employment of L Nonimmigrants. 

Section 4305. Filing Fee for L Nonimmigrants. 

Section 4306. Investigation and Disposition of Complaints against L Nonimmigrant Employers. 

Section 4307. Penalties. 

Employer Takeaway:  Directly and through business associations and trade groups, Employers should reach out to their Congressional representatives to let them know that the changes proposed and the administrative agency interpretations now in force are hurting their business operations and must be reversed.

V.  Judicial Interpretations. The federal courts are also taking aim at the L-1 visa category, usually deferring to immigration-agency determinations and providing little relief in response to erroneous agency action.  A recent example is Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, which follows the GST case reasoning and defers to the presumed expertise of USCIS in immigration adjudication, even though that AAO decision, as shown above, is non-binding and contradicts prior established USCIS policy in the Puleo memorandum.

The district court in Fogo De Chao does not consider the Supreme Court’s immigration-law ruling in Judulang v. Holder, 132 S.Ct. 476 (2011), in which the Justices found arbitrary and capricious behavior by a tribunal (the Board of Immigration Appeals or “BIA”) in the government’s effort to remove a lawful permanent resident. The Court declined to follow the tribunal’s latest interpretation in part because the tribunal "has repeatedly vacillated in its method for applying" the law's requirements. 132 S.Ct. at 488.  Speaking in terms that could apply equally to the USCIS’s current expression of its L-1B criteria, the Judulang decision found that the BIA had “repeatedly vacillated in its method for applying” a section of the Immigration and Nationality Act (INA), and therefore declined to defer to the BIA’s presumed expertise. 

Employer Takeaway: Employers who seek federal court review of erroneous L-1 decisions by USCIS should make sure their immigration counsel demonstrate to the court how USCIS has  “repeatedly vacillated in its method for applying” the eligibility criteria under the  INA’s L-1 definitions of executives, managers and persons with specialized knowledge, and urge as a result that court pay no deference to the agency’s changing L-1 determinations.
* * *
Regrettably, the L-1 visa category is not the only employment-based benefit under attack by the three branches of the federal government.  Similarly arbitrary and capricious decisions are made every business day across the pantheon of nonimmigrant work visas and employment-based green cards.  Given these daunting challenges, employers and their internal counsel should reconsider the way they deal with their immigration-related business objectives.  Thus, if ever there is a time for improving the employer’s immigration portfolio management, it's now.
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The L-1 Intracompany Transferee Visa Facing Attack -- From All Branches of the Federal Government (Part I)

9/22/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Bloggers Note:  My two-part blog post below first appeared in Seyfarth Shaw LLP's September 10 and September 12 "Employment Law Lookout" Blog]
The L-1 Intracompany Transferee Visa Facing Attack -- from All Branches of the Federal Government (Part I)
By Angelo A. Paparelli
U.S. employers have likely grown accustomed to the longstanding controversy over the highly coveted  H-1B visa for workers in a “Specialty Occupation” -- the nonimmigrant category whose annual quota for professional workers often is exhausted within a week of each year’s new allotment.  The H-1B controversy arose because of apocryphal or largely unproven allegations, fueled by media reports and some politicians, that employment of H-1B workers somehow undercuts job opportunities for American citizens and promotes the offshoring of jobs. As studies have shown, however, the H-1B actually creates job opportunities for citizen workers.

Many American employers, however, are less familiar with the comparable brouhaha now brewing over the L-1 or “Intracompany Transferee” visa.   The L-1 -- a veritable Clydesdale of work visas -- allows executives, managers and employees with specialized knowledge, gained at an overseas affiliate, subsidiary or parent, to enter the U.S. and work in a comparable capacity for a related company.

This two-part blog post will show why employers hoping to import L-1 workers must now be prepared to submit more thoroughly documented cases in the face stiff of opposition from government adjudicators, Congress and the federal courts, as this formerly flexible and useful visa category is assailed from all quarters.

New constraints on the L-1 visa category, as will be shown, stem primarily from two Senators (Chuck Grassley and Dick Durbin), a coterie of federal bureaucrats, immigration adjudicators, consular officers, and some federal judges who pay undue deference to the presumed expertise of the primary immigration agency, U.S. Citizenship and Immigration Services (USCIS).
Introduction to the L-1 Visa Category and a Retracing of Recent History
Created in 1970, the L-1 visa was enacted to “help eliminate problems [then] faced by American companies having offices abroad in transferring key personnel freely within the organization’ in order to “meet the objective of American industry which has been seriously hampered in transferring personnel . . .” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. at 2753-54.

From 1970 to 2008, the L-1 visa worked well, pretty much as Congress intended, although start-up companies often encountered difficulty bringing foreign managers into the country (unless the new venture already employed two tiers of personnel -- something start-ups rarely do). 

Congress tweaked and liberalized the L-1 in 1990.  It created a new “L-1A” subcategory that included a class of “function manager,” in addition to the two existing types of manager -- (1) a manager of at least a double layer of subordinate personnel, and (2) a first-line supervisor of “professionals” (individuals who held at least a relevant bachelor’s degree or the equivalent in the relevant field). Congress also said that government adjudicators, when considering whether staffing functions are relevant in determining whether a candidate qualifies as an L-1A manager, must consider “the reasonable needs of the organization, component, or function in light of [its or their] overall purpose and stage of development.  Lastly, Congress specified two new alternative definitions of specialized knowledge under the “L-1B” subcategory.

The immigration agency at the time, Immigration and Naturalization Service (INS), provided regulations in 1990 acknowledging that Congress had adopted the new function manger classification and broadened the basis for  “specialized-knowledge” eligibility.  It also later offered two policy memoranda that liberally interpreted specialized knowledge and provided several real-world examples to demonstrate the concept.  The more detailed of the two L-1B  policy memoranda, issued by an INS administrator named James Puleo, thus became the “Puleo memorandum” and it stood unquestioned as agency policy (likewise followed by the Department of State) for several years.

With the INS regulations and the Puleo memorandum as guideposts, adjudicators generally approved well-documented L-1A and L-1B  visas with consistency and predictability, as long as managers “primarily” managed subordinates or functions (meaning that they spent abroad and would spend in the U.S. over half the time in management activities as defined under the INS regulations), and specialized-knowledge candidates satisfied one or the other of the liberal Puleo standards.  And employers mostly said, “It is good.”

But then, out of the blue, the successor to INS, USCIS, through its Administrative Appeals Office (AAO), issued a “non-precedent” decision in 2008 that came to be dubbed the “GST” case.  GST essentially repudiated the Puleo memorandum on L-1B specialized knowledge without any change in law or regulations.

In addition, gradually over many years, before and especially since 2008, the L-1A also faced attack.  Despite the new “function manager” classification Congress created in 1990, USCIS adjudicators tended to insist that a function manager could not “primarily” manager the function, unless he or she supervised subordinates. Otherwise, the individual would be seen as performing the function rather than managing it, and be found ineligible for an L-1A.  This interpretation essentially eradicated the 1990 changes Congress made to liberalize L-1A manager eligibility.

These new constraints on L-1 visa eligibility came not from USCIS headquarters or newly published regulations signaling a change in agency interpretation, but from front-line case officers at agency’s Regional Service Centers, and then were blessed by the AAO in the supposedly non-binding GST L-1B case and in similarly restrictive AAO nonprecedent decisions interpreting the L-1A function manager category.

As Part II (appearing in two days) will show, this bottoms-up movement from within USCIS gradually has taken on the trappings of black letter law, and been copied and adopted by the U.S. Department of State’s Visa Office (which inexplicably reversed its earlier liberal interpretation),  U.S. consular officers at embassies and consulates abroad, and the Department of Homeland Security’s Office of Inspector General. Even more troubling, the Senate and the House have proposed new constraints on the L-1 visa. If enacted, these proposals will add an obligation to pay an artificially inflated prevailing wage, encourage L-1 investigations and worksite visits, and allow the filing of civil claims against employers of L-1A while drastically restricting multinational consulting and sourcing firms from using the visa category.  Part II will also suggest measures employers can pursue to continue using the L-1 to achieve their domestic and glob al business objectives. Stay tuned.
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Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers

8/11/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Blogger's note:  Today's post is by guest columnist, John Klow.  John is one of the most knowledgeable private citizens who understands the inner workings of U.S. Customs and Border Protection.  In the post below, John elucidates the often opaque, behind-the-scenes process whereby an individual who is found inadmissible to the U.S. may apply for a temporary waiver, and, if the governmental stars are aligned, nonetheless be granted entry.  

Spoiler alert:  The government holds all the cards -- another reason why Congress should inject a dose of due process as it struggles to reform our immigration laws.]

Immigration Mystery Revealed:  The Occult Process behind Nonimmigrant Visa Waivers
By John B. Klow
Back in the days of the Immigration and Naturalization Service (INS), the immigration benefits and enforcement agency operated within the Department of Justice, processing of consular nonimmigrant waivers seemed to be pretty straight forward.

Applicants submitted their nonimmigrant visa applications at American consulates, and if an individual were found inadmissible to the U.S., consular officers, if so inclined, forwarded recommendations that a waiver of inadmissibility be granted to the overseas INS offices with jurisdiction to approve a waiver.  The process was transparent, but decisions could take frustratingly long times -- often months, sometimes stretching to a year or more.  Lengthy delays were attributable to the competing priorities assigned to the particular INS office overseas.  Also, with this sort of decentralized decision-making, there was at least a perception of inconsistency of adjudications.

With the creation of the Department of Homeland Security on March 1, 2003, changes came.  U.S. Customs and Border Protection (CBP) decided to keep the nonimmigrant waiver decision-making process within the inspections program as it had rested in the INS days.  The reasoning was that the decision of whom to admit at ports of entry was CBP’s, and CBP should not have to go to another agency for that determination.  Since the immigration inspection program transferred to CBP, so also did nonimmigrant waiver decision-making authority.

CBP established a single office to decide all nonimmigrant waiver cases, the Admissibility Review Office, now located in Hearnden, VA.  Centralization provided a dedicated, experienced resource that could be focused on a single (or at least primary) priority to provide consistent decision-making.

For consular nonimmigrant waivers, cases are forwarded electronically from the consular officer to the ARO through the State Department’s Consular Consolidated Database (CCD) by means of the Admissibility Review Information Service (ARIS).  ARIS is entirely electronic (no paper), and works through secure Internet communication via the CCD.  For security reasons, there is no provision for outside parties to be part of the ARIS communication process.

The inability for attorneys or accredited representatives to be part of the ARIS communication between the consular officer and the ARO has led to some frustrations.

What gets referred to the ARO?

Only a favorable recommendation from the consular officer gets consideration by the ARO Director.  Under the Immigration and Nationality Act (INA), the Attorney General (now the Secretary of Homeland Security) may approve a recommendation from the Secretary of State or the consular officer that an alien be admitted temporarily despite inadmissibility.  In reality, this means that only a favorable recommendation gets consideration for approval.  Without a consular recommendation for admission, the ARO Director will return the consular officer’s referral through the U.S. Department of State Visa Office, asking the Visa Office to remind the consular officer to not forward cases without a positive recommendation for approval.  (See, 9 FAM 40.301 N6.1 (b))

What gets forwarded with a favorable consular recommendation?

One of the frustrations expressed by immigration lawyers is that carefully prepared briefs are ignored by the consular officer and never forwarded for ARO consideration.  This is not an imaginary problem.  Briefs, and other documentation, must be scanned by the consular post into the CCD.  Scanning is labor-intensive, and utilizes valuable consular resource.  9 FAM 40.301 N2 a (3) clearly instructs that all supporting documents are to be scanned into the CCD; however, that does not always happen.  ARO staff may return the referral to post, requesting additional documentation, but are more likely to request records of conviction than attorney briefs.  Practitioners should use their best persuasive skills to urge the consular officers to scan important documentation into the CCD for ARO consideration.

Will the ARO approval be a blanket authorization for travel?

The INA requires that conditions be attached to each approval:  “The Attorney General shall prescribe conditions … to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.”  (INA 212(d)(3)(A).)  The prescribed conditions are clearly evident on the nonimmigrant visa, as they typically are expressed as the NI category authorized, number of admissions, and validity of the visa.

When is the consular recommendation forwarded?

Each post will have its own review process, before the case is finalized and forwarded to the ARO.  A busy post such as London (contributing roughly 20% of the world-wide total) may have several layers of review before the Chief of Consular Services will push the final send button to forward the case to the ARO.  Each layer of review takes some necessary time; occasionally a practitioner will find that a case that presumably was pending with the ARO has not yet left post.  Remember that the ARO Director has nothing to consider until he receives the referral through ARIS in the CCD.

Are there other delays?

9 FAM 40.301 N 6.2 describes other situations when a consular post may (or must) refer the case to the Visa Office for review.  Remember that any case referred to the VO must go through that clearance process before final referral to the ARO.

How can a visa applicant receive expedited action from the ARO?

The FAM advises that ARO decisions may take as long as 120 days.  The experienced practitioner probably recognizes that 120 days is a goal that may not always be realized, and should be prepared for longer processing times.  The FAM also advises that Expedited Action may be requested in truly meritorious cases.  (9 FAM 40.301 N7 a.)

Can an immigration lawyer communicate directly with the ARO?

Another expressed frustration is the lack of a direct communication channel with the ARO.  This is best explained by recognizing that the traveler’s sole application is the request for the nonimmigrant visa, pending before the consular officer.  It is the consular officer’s recommendation for a nonimmigrant waiver that is forwarded to the ARO Director, and the only communication about that recommendation is between the ARO staff and the consular officer.  Any attempt to communicate directly with the ARO Director is seen as an attempt to circumvent the direct communication between the consular post and the ARO through the secure process existing in ARIS and the CCD.  Any inquiries about processing should be directed to the consular post where the nonimmigrant visa application is pending.

Who makes the final decision?

Although the ARO Director makes the decision on the consular officer’s recommendation, the consular officer has the final decision on whether to issue the visa.  The ARO Director may authorize visa issuance, but the final decision rests with the consular officer and the Secretary of State.

Can visa applicants or their counsel find out why the ARO Director has denied a consular officer’s favorable recommendation?

Although the ARO historically has approved more than 90% of consular officers’ recommendations, some requests are denied.  Both the State Department and CBP are reluctant to disclose the ARO Director’s exact reasoning, even though FOIA requests.  The simple truth is that the ARO Director’s negative response, through ARIS in the CCD, will be terse, indicating “Denied”, and often advising only that “Risk of harm is too great if alien is admitted.

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May a consular officer’s decision to not make a favorable recommendation be appealed? Although there is no formal appeal process, a visa applicant or her attorney may insist that the consular officer refer the case to the Visa Office for an advisory opinion if a consular officer declines or refuses to make a favorable recommendation to the ARO.  (9 FAM 40.301 N6.2 a.)  After review, the Visa Office may concur with the consular officer’s decision and likewise decline to offer a favorable recommendation; in that instance, the nonimmigrant visa application is denied.  The applicant’s only recourse is to apply again, hopefully when circumstances are more in favor of approval.  Alternatively, the Visa Office may decide to make a direct recommendation for approval to the ARO Director.

What about an appeal of the ARO Director’s decision?

No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.”  8 CFR 212.4(a)(1), final sentence.  The question is – by what means could the NIV applicant appeal the denial of a consular officer’s recommendation to the ARO Director?  There has been no direct application submitted by the applicant to the ARO Director.  The only issue considered by the ARO Director is the consular officer’s recommendation.  The consular officer’s denial of the nonimmigrant visa application is subject to the doctrine of consular nonreviewability.
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As can be seen, much about the mechanics of a nonimmigrant visa waiver is shrouded from the visa applicant and legal counsel.  Hopefully, this blog post has added some transparency to a process seemingly cloaked in mystery.
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Reforming Immigration "with Liberty and Justice for All"

11/18/2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Promote entrepreneurship and investment.  Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of "free-agency" for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits.  It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements.  It should allow for the creation of a Founders or Start-Up Visa.  It should confer immigration benefits on investors in residential or commercial real estate.  It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.
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These suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers.  While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world's most desirable immigrants.

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The Immigration Week That Was

9/23/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.
TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:
  • 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
  • Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
  • The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
  • Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
  • R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
  • Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.
Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.
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Immigration's Private Parts Modestly Yet Shockingly Exposed

3/11/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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With more than three decades of experience under my belt, I like to fancy myself an expert in immigration.  Yet however much I think I understand the subject, new things surface that blow my mind and puncture my inflated sense of self.  I have come to realize that much of what I "know," I merely surmise or sense. It's like looking at an arabesque from a distance, and then homing in, and being stunned by unnoticed details. Such was my experience reading the prepared remarks and listening to opening statements, testimony and the questioning of government witnesses at a March 6 subcommittee hearing of the House Homeland Security Committee.  Convened by Rep. Candice Miller (R-MI), Chairwoman of the Subcommittee on Border and Maritime Security, the hearing delved into efforts by U.S. Immigration and Customs Enforcement (ICE) and the Department of State to deter, detect and apprehend visa overstayers, a problem population that Rep. Miller described as comprising 40% of all illegal immigration in America. 

The video of the hearing, "From the 9/11 Hijackers to Amine el-Khalifi: Terrorists and the Visa Overstay Problem," offers an eye-popping view behind the purdah of government data collection in the immigration space.  The statistics-laden statements of ICE's Peter T. Edge and John Cohen and of State's David Donahue are even more revealing.

Here are revelations, from ICE, that were new to me:
  1. ICE now conducts visa security investigations at 19 high-risk visa adjudication posts in 15 countries. In FY 2012 to date, VSP [Visa Security Program] has screened 452,352 visa applicants and, in collaboration with DOS colleagues, determined that 121,139 required further review. Following the review of these 121,139 applications, ICE identified derogatory information on more than 4,777 applicants.
  2. [ICE's] Counterterrorism and Criminal Exploitation Unit (CTCEU) is the first national program dedicated to the enforcement of nonimmigrant visa violations. Today, through the CTCEU, ICE proactively develops cases for investigation in cooperation with the Student and Exchange Visitor Program (SEVP) and the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program.
  3. These programs enable ICE to access information about the millions of students, tourists, and temporary workers present in the United States at any given time, and to identify those who have overstayed or otherwise violated the terms and conditions of their admission.
  4. Each year, the CTCEU analyzes records of hundreds of thousands of potential status violators after preliminary analysis of data from the Student and Exchange Visitor Information System (SEVIS) and US-VISIT, along with other information. After this analysis, CTCEU determines potential violations that warrant field investigations and/or establishes compliance or departure dates from the United States.
  5. Between 15,000 and 20,000 of these records are analyzed in-house each month. Since the creation of the CTCEU in 2003, nearly 2 million such records using automated and manual review techniques have been analyzed. On average, ICE initiates approximately 6,000 investigative cases annually and assigns them to our special agents in the field for further investigation, resulting in over 1,800 administrative arrests per year.
  6. Biometric information sharing between the Federal Bureau of Investigation’s Criminal Justice Information Services (FBI-CJIS) and US-VISIT is the foundation of Secure Communities’ use of Automated Biometric Identification System (IDENT)/Integrated Automated Fingerprint Identification System (IAFIS) interoperability.
  7. Through Secure Communities’ use of IDENT/IAFIS interoperability, aliens—including those who have overstayed or otherwise violated their immigration status— who are encountered by law enforcement may be identified as immigration violators when fingerprints are submitted to the FBI-CJIS’s biometric database, IAFIS, and then to DHS/US-VISIT’s biometric database, IDENT.
  8. Secure Communities’ use of this technology is deployed in over 2,300 jurisdictions in 46 states and territories. US-VISIT also analyzes biographical entry and exit records stored in its Arrival and Departure Information System to further support DHS’s ability to identify international travelers who have remained in the United States beyond their periods of admission.
  9. ICE receives or coordinates nonimmigrant overstay and status violation referrals from US-VISIT Mission Support Services from three unique sources, which include: the typical overstay violation; a biometric watch list notification; and a CTCEU Visa Waiver Enforcement Program (VWEP) nomination.
Equally stunning were the following stats from State:
  1. State maintains derogatory information in 42.5 million records found in the Consular Lookout and Support System (CLASS), its online database of visa lookout records. CLASS has grown more than 400 percent since 2001.
  2. Almost 70 percent of CLASS records come from other agencies, including DHS, the FBI, and the DEA. CLASS also includes unclassified records regarding known or suspected terrorists (KSTs) from the Terrorist Screening Database (TSDB), which is maintained by the FBI’s Terrorist Screening Center (TSC) and contains data on KSTs nominated by all U.S. government sources.
  3. State also screens visa applicants’ names against the historical visa records in its Consular Consolidated Database (CCD). A system-specific version of the automated CLASS search algorithm runs the names of all visa applicants against the CCD to check for any prior visa applications, refusals, or issuances. DHS and other federal agencies have broad access to the CCD, which contains more than 151 million immigrant and nonimmigrant visa records covering the last 13 years.
  4. In January 2012, more than 20,000 officers from DHS, the FBI, and the Departments of Defense, Justice, and Commerce submitted more than two million visa record queries in the course of conducting law enforcement and/or counterterrorism investigations.
  5. Visa applicants’ fingerprints are screened against DHS and FBI systems, which between them contain the available fingerprint records of terrorists, wanted persons, immigration law violators and criminals. In 2011, consular posts transmitted more than 8.6 million fingerprint submissions to these systems, and received from them more than 221,000 derogatory and criminal history records.
  6. State uses facial recognition technology to screen visa applicants against a watchlist of photos of known and suspected terrorists obtained from the TSC, as well as the entire gallery of visa applicant photos contained in State's CCD.
  7. In April 2008, consular officers at posts abroad obtained access to arrival and departure data for non-U.S. citizen travelers contained in the DHS Arrival Departure Information System (ADIS).  State began running automated ADIS checks for every visa applicant in June 2011.
  8. Consular officers submitted more than 366,000 Security Advisory Opinion (SAO) requests in FY 2011.
  9. Since 2001, State has revoked approximately 60,000 visas for a variety of reasons, including nearly 5,000 for suspected links to terrorism.
  10. As soon as information is established to support a revocation (i.e., information that could lead to an inadmissibility determination), a “VRVK” entry code showing the visa revocation is added to CLASS, as well as to biometric identity systems, and then shared in near-real time (within about 15 minutes) with the DHS lookout systems used for border screening.
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With so much data floating in federal ether, an ancient Roman interrogatory naturally came to mind: Quis custodiet ipsos custodes? (Who will guard the guards themselves?) The question is not so far-fetched because we learned this week that although our system usually entails oversight by the judiciary of the other two branches of government, the incumbent Attorney General thinks otherwise. "Due process," he declaimed in justifying the targeted killing of a nasty American citizen, does not necessarily entail "judicial process."  There are many other reasons why all of this free-floating federal data frightens me:

  1. Government officials sometimes break the law. Witness the killing last month of an ICE official by an ICE official. Consider the ICE travel-reimbursement kickback scheme revealed recently. Recall the DHS insider data-hacking scandal of last year. Remember the State Department employees' improper access to the U.S. passport applications of celebrities in the near-distant past.  Realize that even "Concerned Foreign Service Officers" feel victimized by the mis-use of investigative power: "A page of advice for [consular and other foreign service officers] who might lose their [security] clearances:  'Expect to be lied to.'" 
  2. Foreign governments play one-up-manship, monkey-see-monkey-do and tit-for-tat. France's National Assembly on March 6 passed a law proposing the creation of a new biometric ID card for the country's 45 million French citizens. Brazil decides to fingerprint arriving U.S. citizens. Russia and the U.S. get into a retaliatory visa smackdown.
  3. First they came for the foreigners, and then they came for me. E-Verify was supposed to prevent the employment in the U.S. of unauthorized non-citizens.  Then, U.S. citizen passport application data was fed into the system.  Customs and Border Protection was formed as a response to 9/11 and now U.S. citizens' laptops are searched at ports of entry without probable cause.  The REAL ID Act is passed to prevent unauthorized immigrants from gaining employment through forged driver licenses, and now several states have passed Voter ID laws that disenfranchise mostly the young and the poor and keep them from the polling booth. 
  4. Innocent people are turned away at America's door or separated from their American Citizen family members. This happens all too often.  The most recent victim, Pitingo, a Spanish Flamenco-Soul singer who did not make his U.S. debut last Friday at the Manhattan Center as scheduled, reportedly because his name, Antonio Manuel Alvarez Velez, common in the Spanish-speaking world, "matches that of someone on the U.S. terrorism watch list".  Even more widespread is ICE's Secure Communities Program -- a home-wrecking initiative that to my astonishment Rep. Miller described at the hearing as "excellent, excellent" -- even though 21% of persons deported through S-Comm have never been convicted of a crime.
Ironically, in the same week as the subcommittee hearing, civil rights and immigrant rights marchers retraced the path of Rev. Martin Luther King from Selma to Montgomery 47 years ago.   Just as in 1965, no less than 2012, abuse of legal power against some threatens the liberty of all. Take a look at the video clip below if you need any reminding.
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Faint Immigration Praise

2/4/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

“Damn with faint praise, assent with civil leer And, without sneering, teach the rest to sneer"
~ Alexander Pope, poet, satirist, and translator, “Epistle to Dr Arbuthnot”

I hesitate to criticize the Obama Administration's immigration reform measures, having urged long ago that half a loaf, at least for now, will perforce suffice.  Hastily announced but untimely in manifestation, the slew of executive half-measures the President's team has lately proposed to improve the functioning of America's broken immigration system seem reminiscent more of vaporware than tangible solutions. 

With less than a year to go on his term, executive orders and departmental or agency press releases are spewing forth as if from a Gatling gun. 

Will these concepts really make a difference?  Or are they merely pheromones to attract progressive, young or Hispanic voters in November?

Consider how much has been said but so little done:

  • Prosecutorial Discretion is announced as a measure to spare low-level immigration violators and slam dangerous foreign felons.  So far the record deportations continue almost unabated and the few granted PD are permitted to remain at the pleasure of the President but without deferred action and its benefit of work permission.
  • Stateside waiver processing for immediate relatives of U.S. citizens whose hardship can be proven as extreme is revealed in a seemingly humanitarian Notice of Intent and an FAQ.  But no rules or procedures have yet been published, and the risk of death-by-visa-waiting remains as high as ever.
  • An interdepartmental push to improve visa processing and promote tourism is inscribed in an Executive Order, with special focus on increased consular officers in Brazil and China.  Still, nothing is said about tourists and business visitors from India whose rupees are as easily converted to dollars and spent in our malls.  Worse yet, no reforms are made by the State Department that would moderate consular absolutism and encourage visa officers -- by amendment of the Foreign Affairs Manual -- to extend a welcome mat more often to foreign visitors with lucre to spend.
  • A DHS grab bag of small measures are announced with the goal "to retain highly skilled workers." These ethereal proposals will likely affect only a tiny slice of the job-creating nonimmigrant population. The list of unrealized hopes includes a nebulous assemblage of H-4 dependents married to H-1B workers "who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S."  It also makes note of the leisurely first convening on February 22 of an "Information Summit [at an undisclosed location] in Silicon Valley, CA [where is that? I can't find the city on my California map], that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies [first announced on August 2 of last year as step one of the Entrepreneurs in Residence program] to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent."
Desultory blather and high-falutin' promises will not jumpstart job creation. Deeds not words -- published forms, specific eligibility criteria and actual procedures to request new benefits -- are what real administrative reforms require.

There are many bold steps that could be taken to improve our dysfunctional system even while Congress remains comatose.  Gary Endelman and Cyrus Mehta suggest a Presidential tweak in the interpretation of green-card counting procedures that would eliminate backlogs and do far more than merely granting spousal work permission "to retain highly skilled workers" ("Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen").  Other proposals have been offered in this blog ("Executive Craftsmanship: Job Creation through Existing Immigration Laws," "The Immigration Appeaser-in-Chief Should Try Some New Ammunition" and "Immigration Reform with the Stroke of a Pen"). When it comes to executive action on immigration, the nation needs a profile in courage not a silhouette of timidity.  The first Tuesday in November is fast approaching.  Time waits for no President.
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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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Missive from Mumbai: Why Are U.S. Immigration Agencies Attacking India and Hurting America?

11/4/2011

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by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

At least when it comes to India, Yogi Berra had it wrong. It's not déjà vu all over again.  Blogging this weekend from my hotel room in Mumbai, I vividly recall my first trip to India in 1993. Invited as part of an American Bar Association delegation, I spoke in New Delhi on “Nonimmigrant Visa Options for Computer Software Professionals.”

My talk took place at LEXPO ‘93, a gathering of about 800 business leaders, accountants and lawyers sponsored by the U.S. Department of Commerce and the U.S. Embassy. Audience members sat in rapt attention as tax and corporate attorneys explained the legalities of doing business in America and I outlined an array of temporary work visa categories readily available to Indians in the new field of computer software.  The World Wide Web had been conceived a scant three years earlier -- the same year Congress enacted and the first President Bush signed the Immigration Act of 1990 (IMMACT) in order to "open the 'front door' to increased legal immigration."  Given the liberalization of the closed Indian economy that began in 1991, Lexpo '93 attendees seemed giddy about the prospects for U.S.-India business collaborations and binational entrepreneurial adventures. 

In 1993, Indian managers, executives and employees with specialized knowledge could easily come to the U.S. as L-1 intracompany transferees. Likewise that year, university-educated entrepreneurs from the world's largest democracy could incorporate a U.S. entity and arrange for the startup to petition the Immigration and Naturalization Service (INS) to grant an H-1B visa petition.  Since IMMACT eliminated the previously daunting requirement of proving that L-1 and H-1B visa applicants maintained an unrelinquished permanent residence in India to which they would return, U.S. consular posts in India readily issued these two categories of visas to Indian applicants.

Although the intent-to-return-to-India requirement made the prospect of receiving a B-1 business visitor visa somewhat uncertain, business visas were still "doable" in 1993 for qualified applicants.  More difficult yet likewise quite attainable was the B-1 in lieu of H-1B (BILOH) business visitor subcategory for temporary professionals, established in a 1982 INS ruling involving an Indian citizen, one Mr. Srinivasan.

Oh how the odds of Indians receiving U.S. business-based visas have worsened in 18 years.  Last week, in Bangalore, I again addressed an audience of Indian executives and entrepreneurs who this time were far more glum than giddy. The title of my presentation ("U.S. & Global Enforcement of Immigration and Employment Laws - Best Practices for Indian Companies") and accompanying slides show that America's immigration agencies have moved from enabling enterprises to opposing entrepreneurship and empowering enforcers.  Panel after panel of speakers (all with many years of experience submitting approvable and ultimately approved cases for reputable companies) described how the visa doors have slammed almost completely shut for most Indian firms, entrepreneurs and employees who want to grow businesses or create or fill jobs in the United States:
  • They described perfunctory 90-second applicant interviews at U.S. consular posts followed by peremptory visa refusals.  (This is likely, in part, a staffing and resource issue attributable to the State Department and Congress.)
  • They asked why the standards for B-1, L-1 and H-1B visa eligibility had become so much more restrictive than in years past. 
  • They pleaded for more transparency and less subjectivity from U.S. Citizenship and Immigration Services (USCIS) and the State Department when articulating the legal and factual criteria for visa issuance. 
  • They wanted to know why U.S. consuls discounted as just so run-of-the-mill the extraordinary creativity and innovation of their IT professionals and businesses, even though the same talents are in high demand from American corporate customers. 
  • They asked why the consular attitude at the interview had changed from 1993 (old vibe: "show me why you are eligible") to 2011 (new vibe: "defend yourself against my all but certain refusal of your visa").
  • They perceived a consular strategy of denying L-1 visas (especially of the blanket variety) and pushing applicants to apply for H-1Bs even though the quota for that category will soon be depleted, leaving Indians to wonder which fortunate few can clear U.S. ports of entry in BILOH status given that U.S. Customs and Border Protection (CBP) officials often believe that the BILOH is a dead letter. (Channeling visa applicants to the H-1B and away from their preferred L-1 contravenes State’s Foreign Affairs Manual [9 FAM 41.11 N3.2, "Choice When More Than One Classification Possible"]).
  • They wondered why business and work visa refusal rates are so much higher for Indian applicants than for the Chinese, Japanese, Europeans and South Americans.
  • They asked aloud what message the U.S. government is sending to India when entry to America is so often barred.
Indian angst over discriminatory U.S. immigration policies is neither apocryphal nor paranoid. As Stuart Anderson of the National Foundation for American Policy recently reported.  Citing State Department data, his research reveals that "[t]he number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011 while L-1s "issued in the rest of the world rose by 15 percent." I share the inference that Mr. Anderson, former INS Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner, drew from this wide divergence in L-1 approval rates:

This shows an enormous gap in visas issued as well as, it must be assumed, approval/denial rates between posts in India and the rest of the world, raising policy questions as to whether this great disparity is the result of a conscious policy at U.S. posts in India. This confirms what many observers have believed: an increase in denials over the past 12 to 18 months is making it far more difficult for employers to transfer employees based in India into the United States on L-1 visas. Employers say this is having a negative impact on growth, projects, and product development in the United States.

My colleague, Greg Siskind, recharactizes more bluntly Mr. Anderson's genteel questioning of the federal government's anti-Indian visa policy:

India has one of the hottest economies on the planet and we are slamming the door on entrepreneurs from those countries expanding operations in the US which very often result in hiring of US employees. Exactly the wrong policy for our times.

No kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India: India is a story of growth and opportunity. India’s sustained growth of around 8.0% in 2009-10 and growing dynamism in several of its regional markets have created wide and diverse business prospects for U.S. exporters and investors. With 2011 growth estimates hovering at around 8.6%, India remains one of the fastest growing, dynamic economies in the world. . . . U.S. multinationals are sold on India and are expanding and deepening their market penetration. . . .

Economic growth in India today is being rewritten by India’s highly entrepreneurial and rapidly globalizing private sector. Indian firms are investing in infrastructure projects, growing their advanced manufacturing capabilities, and investing in new volume-based business models that tap into rising incomes and consumption in towns and rural economies across the country. . . . Indian firms are bullish about their economy and are eager for U.S. commercial and joint venture partnerships, technologies, brands, services, and know-how. . . . In 2010, U.S. exports to India amounted to $19.2 billion.

The State Department, although in cahoots with USCIS and CBP in their sub rosa efforts to deny visas or entry to Indian entrepreneurs and employees, surprisingly agrees with Commerce's assessment, as shown in the "Read Out on Secretary of State's [July 2011] trip to India":

On . . . trade and investment, both [governments] remarked on the real dynamism now in our trade and investment partnership. It was remarked that trade has gone up by 30 percent just this year alone, and investment also is growing very rapidly. In terms of the deliverables, I think you know we announced that we’ve agreed to resume technical discussions on a bilateral investment treaty [BIT] in August. And again, I think that’s important because there’s increasing flows of investments not only by the United States into India, but also by Indian companies into the United States [bolding added].

The technical discussions on a new U.S.-India BIT, which presumably would include the standard Treaty Investor [E-2] visa provision, apparently did not commence in August.  As Secretary Clinton noted in her October 14 speech on "Economic Statecraft" to the Economic Club of New York reported:

The State Department and the U.S. Trade Representatives Office will also lead negotiations on next-generation of bilateral investment treaties, the so-called BITs that protect and encourage investment. And I am pleased to announce we will soon resume technical level discussions on a new BIT with India [bolding added].

While technical talks have yet to start, U.S. immigration impositions on Indians persist. The latest burden imposed by State on Indian companies is the closure of four U.S. consular posts (New Delhi, Hyderabad, Kolkata and Mumbai) to blanket L-1 visa applicants and the insistence that all such applicants apply only at the consulate in Chennai.  India is a large country, covering some 1.27 million sq. mi., roughly a third the size of the United States.  The costs of travel to Chennai, hotel accommodations and absence from work unnecessarily burden Indian companies and visa applicants.  The official explanation for this change is phrased in a way that would make George Orwell smirk: 

This change is in order to streamline the blanket L visa issuance process, and is part of the U.S. Government’s ongoing effort to provide efficient visa services throughout India. [Bolding in original.]

I guess it's hard to kickstart economic statecraft and negotiate a mutually beneficial BIT with India when one awkward "technical" obstacle stands in the way.  Federal immigration bureaucrats must first get rid of the Indians-unwelcome mat.

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