Angelo Paparelli on Dysfunctional Government

Follow the Immigration Money -- Once More with Feeling

The Great Depression profoundly affected the psyche of the American people, just as today's Great Recession spawns untold emotional harm that will last for generations.  Like a toxic seed, the Depression planted itself deeply into the emotional minds of those who lived through it, only to be transmitted from generation to generation, as parents told their children of hardships endured and shame swallowed.  I know that it affected me long after my mother shuffled off her mortal coil.  As a child, I listened intently to one of her remembrances -- the humiliation she felt in receiving free shoes as a Christmas present from the local welfare agency.  It was not the gift of the shoes so much that troubled her but the fact that they were rugged, high-top shoes, resembling combat boots, that she feared would signal to her friends at school her family's acceptance of welfare.

The current Director of U.S. Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, offers a similar story of penury recounted decades later in the agency's new blog:

About twenty years ago I visited my great aunt and uncle in their apartment in Brooklyn where they had settled after emigrating from Cuba. They had prepared a sandwich for me wrapped in a neatly-cut square of wax paper. After lunch my great aunt took the wax-paper square, ironed the creases with her hand, and placed the flattened square on a stack of wax paper squares resting atop her refrigerator. My great aunt and uncle understood the value of each cent and the struggle it took to earn it.

For no particular reason I can fathom, these stories got me to thinking of a famous quote about money attributed to Jesse Unruh, former Speaker of the California State Assembly: "Money is the mother's milk of politics."  Although Mr. Unruh was referring to campaign contributions, the same can be said about the greenback's effect on America's immigration system. 

Last year, I described in harsh terms what I saw was the unwise expenditure of money at USCIS in the pre-Mayorkas period.  Now it's time to examine it from another perspective, like the one espoused by the American Council for International Personnel (ACIP):

FEE REVENUE IS NOT ENOUGH - USCIS BUDGET SHORTFALLS EXPECTED

USCIS currently processes around seven million cases annually. This $2+ billion a year in fee revenue barely covers the costs to process USCIS’ current caseload, leaving little additional money for non-fee services, such as transformation efforts, infrastructure, and asylum and refugee programs. This budget gap is exacerbated by a lag time between the receipt of fees and fee availability to cover costs. For fiscal year 2010, USCIS is expected to generate around $2.4 billion in fee revenue and will receive just $224 million in appropriations. The President’s fiscal year 2011 budget request includes an increase of $158 million in appropriations for USCIS, but most of this money is tagged for immigrant integration and verification programs, such as E-Verify.

Mr. Mayorkas made a similar point this week in testimony before the House Appropriation Committee (Subcommittee on Homeland Security): 

USCIS has significant challenges that it is working to overcome. The most immediate is a drop in fee revenue. . . . I am committed to maintaining a strong focus on improving our performance in all program areas even in the face of fiscal challenges. We must be more efficient out of respect for the customers who pay fees and the taxpayers who support our operations. USCIS activities must be more transparent than they have in the past, and we need to work closely with our stakeholders and the public to deliver the customer service and immigration benefits that we expect and our customers deserve.

He also thanked the Subcommittee for approving "surcharge reductions" and appropriating funds to relieve businesses and individuals requesting immigration benefits who had been required to pay user fees that included unfair and burdensome (my words) subsidies for the cost of administering America's (wholly worthy) asylum and refugee programs.

Another intelligent use of appropriated funds can be seen in Homeland Security Secretary Janet Napolitano's announcement on the Fox News program, the O'Reilly Factor,

[Bill] O'REILLY: Thank you. Today in The New York Times, they report that the Virtual Border Funding is going to be shut down because the virtual border, which is the electronic gizmo stuff is a total waste of time, not doing anything. You, as a former governor of Arizona, know that very well. Is that true? Did we waste a billion dollars on this thing?

[Secretary] NAPOLITANO: Well, we're not going to spend any more money on it until we know it works. And what we're doing is moving money that had been appropriated for that technology we know our agents can use at the border right now.

Secretary Napolitano would be wise to set aside for USCIS some of the $50 million in stimulus funds to be spent on the "electronic gizmo stuff" -- the folly of a virtual fence -- that the OMB confirms in its full report has been ill-conceived from the start:

SBInet [virtual fence] testing has not been adequately managed, as illustrated by poorly defined test plans and numerous and extensive last-minute changes to test procedures. Further, testing that has been performed identified a growing number of system performance and quality problems--a trend that is not indicative of a maturing system that is ready for deployment anytime soon. Further, while some of these problems have been significant, the collective magnitude of the problems is not clear because they have not been prioritized, user reactions to the system continue to raise concerns, and key test events remain to be conducted. Collectively, these limitations increase the risk that the system will ultimately not perform as expected and will take longer and cost more than necessary to implement. For DHS to increase its chances of delivering a version of SBInet for operational use, we are recommending that DHS improve the planning and execution of future test events and the resolution and disclosure of system problems. DHS agreed with our recommendations.

What we "know . . . works" is the end product of our immigration system.  What works is to produce "Outstanding Americans by Choice" -- something that, within our system of laws, only USCIS can do.  As Congress considers appropriations for the Department of Homeland Security, and as momentum builds for "a tough but fair path forward" to regularize the status of 11 million undocumented humans in this country, the time has come to pay the freight and to invest wisely in our nation of immigrants.

As I struggle even today to come to grips with my family's emotional trauma from their lack of money while experiencing the immigrants' dream in America, the wisdom of Joe Dominguez and Vicki Robin in Your Money or Your Life comes to mind. The authors conclude that money is a substitute for "life energy."

I've never spoken with Mr. Mayorkas about the emotional side of money, but I suspect from his observation below that he would agree with authors Joe and Vicki about its power to produce life energy: 

I came to this country in 1960, my family having fled Cuba so that my sister and I, and later my brothers, could realize the promise of democracy. I am forever mindful of the journey we made and the challenges it involved. The wax paper atop my great aunt's refrigerator is a lasting symbol, one that guides me as we at U.S. Citizenship and Immigration Services make the journey possible for others and help define our nation in that spirit.

Waiting for Barack: Unwavering Commitment but No Timeline on Immigration Reform

As spring approaches, Washington DC's Kabuki Theatre plans a new production.  A mash-up of Kafka and Beckett, "Waiting for Barack" will begin with a casting call on March 21 as thousands of would-be thespians, consisting mainly of immigration reform activists, are expected to descend on Capitol Hill, harboring dreams of a lead role in what they hope will be an epic immigration performance. Not since 1986 have the wonkish theatregoers of Washington been so excited.  Then, "IRCA's Morning in America" was the talk of the town and the nation. 

The new show's producers, three well-known impressarios (optimistic, Chuck Schumer, fretful and tentative, Lindsey Graham, and indefatigable, Luis Guitierrez), have yet to announce when the long-anticipated play (originally slated to premiere in 2009) will open. Marketing for the production is modeled after the recent trend in Indie films, with bilingual buzz building in ethnic and social media and the blogosphere. 

The producers, including the show's backers from the Hispanic Caucus, as well as prospective cast members, all met recently with the man they hope will play the lead, a charismatic figure who in his early career carried the stage name, Barry, but now goes by "Mr. President."  The show's supporters left the meetings heartened that their long-sought protagonist, who expressed "unwavering" commitment will soon conclude his latest engagement, "The Health Care Follies," and be ready, after a now-delayed working vacation in Asia, to ascend the immigration stage.  Early reports suggested that rehearsals would begin in April, but then Roll Call, Washington's punningly-titled version of Playbill, published a clarification:

Correction: March 11, 2010

An earlier version of this story indicated that President Barack Obama told immigration reform advocates that he would push for a bill to pass in April. He never gave a specific timeline.

Some dramaturgs, however, are not disspirited.  They are heartened by the prospect of modest but meaningful immigration performances on the administrative stage, and point to a poignant Chilean laboratory theatre script reading by the protagonist's troupe, that expresses the range of power and influence that this star can readily command when he is so inclined.

Will "Waiting for Barack" ever be staged?  Interested theatregoers desperately want to attend the premiere.

Immigration Aftermath of Prior Posts

I'm traveling this week and composing from an airport with just a few minutes till my flight departs.  Rather than offering the usual extended analysis, I write briefly on three important developments that follow on earlier posts.

1. DHS Scorecard. In July 2008 I wrote about the report card that the Homeland Security Department gave itself.  Well, the Immigration Policy Center has just graded the Department in a report that measures performance against the immigration goals set out just over a year ago by the Obama Transition Team.  The New York Times Editorial Page also weighs in on the topic, as does HSToday.
2. E-Verify. I've critiqued the E-Verify approach to employment-eligibility verification time and again.  Now, Westat, the consultants USCIS hired to rate the system, have issued a long and short report that finds this automated system fails more than half the time to prevent unauthorized workers from receiving confirmations of employment authorization.
3. Costly Federal Criminal Prosecutions of Immigration Violations. A recent post offered a penny-pinching suggestion on cutting the federal deficit and invited bipartisan support.  Federal District Judge Sam Sparks suggested that the U.S. Attorney in West Texas justify decisions to spend precious federal dollars on prosecution of immigration violations.  Acting U.S. Attorney Tom Murphy has now responded, as have TRAC and the editor of Bender's Immigration Daily.

Each of the foregoing links are worth a read. Nothing about immigration policy or law is simple. Draw your own conclusions.  Meantime, my flight is boarding.  Ciao.

Immigration Tsunami Washes over Staffing and Consulting Firms

The January 8, 2010 memorandum (the Memorandum), issued without forewarning or delayed effective date by United States Citizenship and Immigration Services (USCIS), continues to roil the immigration waters where U.S. businesses must try to fish.  I've written time and again on the Memorandum, focusing upon the death knell it rings for entrepreneurs who hold majority or greater stakes in start-up and emerging companies (Working Owners), and decrying its novel and unexplained decision to reexamine the factors required to establish an acceptable employer/employee relationship.

The Memorandum's harmful effects are no less damaging, however, to important sectors of the U.S. economy, as I noted in Wednesday's New York Law Journal  "Immigration Column," co-authored with Ted Chiappari.  In "New USCIS Policy Clips Entrepreneurs, Consultants and Staffing Firms," (provided courtesy of IncisiveMedia, the copyright holder), Ted and I also focus on the painful blowback the Memorandum will inflict on businesses in the staffing and consulting industries. 

Staffing companies, dubbed pejoratively by the USCIS as "Job Shops," but actually providing real value to American businesses, will effectively be put out of business if the Memorandum is not withdrawn. Consulting enterprises, if not wholly barred from conducting business by the Memorandum, will nonetheless be required to (a) supply voluminous confidential documentation that will likely cause impairment to their client relationships, (b) apply more frequently than ever before for costly H-1B petition renewals, and (c) expect that petition extension requests will be scrutinized closely for any prior acts of perceived misbehavior and that the recent spate of site visits and port-of-entry interrogations will continue unabated. 

Also troubling is the recognition that the inflicted damage is not limited to the H-1B visa category.  The Memorandum's unconvincing legal reasoning is replicated and applied to other employment-based immigration categories in recent USCIS Administrative Appeals Office rulings that make it much harder for a petitioning "employer" to gain USCIS's permission to hire an "employee."

The few remaining Pollyannas among immigration stakeholders may not yet be crestfallen but others should beware. USCIS clearly intends to persist in the types of intrusive micro-management of U.S. business operations described above.  Witness the recent change in the boilerplated wording of Form I-797 approval notices:

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

USCIS also proposes to add new burdens on the all-purpose work-visa petition that employers must complete, the Form I-129, if the Office of Management and Budget approves revisions to the form and its instructions.  (For comparison charts that note the respective changes, click here:  form-changes chart and instruction-changes chart.)  As you will see, a number of new, difficult and burdensome questions are asked about deemed-export licensing requirements (a complex substantive area of law distinct from immigration), J-1 history, third-party worksites and acknowledgment of potential site visits.  Despite these new questions, USCIS's supporting statement does not expressly alert the Office of Management and Budget (OMB) that such significant changes are added. 

These changes, despite USCIS's protestations to the contrary in its supporting statement, will significantly and adversely affect small businesses, because, as noted in past links cited above, they will deny working owners the chance to receive work visas and green cards. The changes, taken together with the new interpretations in the Memorandum, will also likely cause the Memorandum to meet the test for a "significant guidance document" requiring prior notice and an opportunity for public comment under the OMB's Bulletin for Agency Good Guidance Practices (GGP). 

In relevant part, a good guidance document is "significant" if a policy memo that is disseminated to "regulated entities or the general public" involves an "interpretation of a statutory or regulatory issue" that "may reasonably be anticipated to:"

• Lead to an annual effect on the economy of $100 million or more or
• [A]dversely affect in a material way the economy, a sector of the economy, productivity, competition, [or] jobs, [or] . . .
• Raise novel legal or policy issues arising out of legal mandates . . .

All three bulleted tests for a "significant guidance document" under the GGP are satisfied by the Memorandum.  As the USCIS supporting statement acknowledges, the costs alone of the changes to Form I-129 entail an effect on the economy of "$122,415,360" without regard to the costs involved in complying with the Memorandum's burdensome evidentiary demands.  Moreover, the adverse material effect of the Memorandum on two job-creating sectors of the economy (the staffing industry and small-business entrepreneurial enterprises) is obvious. And undoubtedly, the Memorandum raises novel legal and policy issues arising out of the interpretation of the statutory and regulatory terms, "employ," "employed," "employer," "employee," and "employment" that are legal mandates for eligibility to receive employment-based petition approvals under the Immigration and Nationality Act.

USCIS need not have stirred up these previously peaceful waters by its unjustified reappraisal of the employer-employee relationship.  The agency should now calm the waters by withdrawing the Memorandum.  If changes are warranted, then USCIS should either propose a regulation and allow prior public notice and comment or at least satisfy the comparable requirements imposed on it by the OMB's good-guidance requirements.  Good governance and the rule of law demand no less.

Out of the Immigration Closet

This is not a post about the injustices afflicted on same-sex couples by U.S. immigration law and policy. Rather, it raises the pressing need for American business leaders to stand up for themselves by "coming out" about their use of the employment-based immigration laws. 

In my 30 years of immigration practice, I've gained a plethora of insights from the C suite about how immigration is an essential strategic tool to help achieve business mission.  I've also heard and participated in boardroom tirades on the inefficiency, impracticality and sheer dysfunctionality of U.S. immigration laws, regulations and procedures. 

What I have not heard from reputable businesses are professions of any intent or willingness to flout the immigration laws.  The enterprise clients I represent want to understand and abide by the immigration laws and to use them to pursue lawful means of making profits. 

What I have not observed, however, is any discernible pattern among virtually all companies to speak out by name in support of changes to the immigration statutes that would empower American firms to compete more nimbly and profitably in the global economy.

The duty of client confidentiality prevents me from reporting the facts on the ground with specific details but I know from countless experiences that when businesses hire the best brains and talents without regard to the serendipity of country of birth, creativity, innovation and profits all increase.  I also know that when American immigration laws and procedures create unworkable obstacles, economic development moves abroad. 

Instructors in PR 101 teach a basic rule:  "Never let the opposition define you."  Geekdom puts it another way:  "Information wants to be free."  Immigration reporters phrase it thusly:  "Do you have any corporate clients willing to talk with me about their experiences with the immigration laws?  The answer I offer them is always the same:  "My corporate clients will talk if you shield their identity."  Reporters and editors uniformly refuse, and the story never makes headlines.  Or worse yet, partial truths are published that mislead by omission and the unavailability of the other side of the story.

A case in point is a February 17, 2010 Economic Policy Institute's Briefing Paper, "Bridge to Immigration or Cheap Temporary Labor? The H-1B & L-1 Visa Programs Are a Source of Both," by Ron Hira, an associate professor of public policy at Rochester Institute of Technology who has written numerous screeds couched in scholar's prose opposing employment-based visas.  Prof. Hira's latest piece on the H-1B and L-1 visa seeks to identify and decry the practices of specific businesses in sponsoring workers in these nonimmigrant categories, and offers his own policy prescriptions:

To fix the H-1B and L-1 guest worker programs, we should institute workable, effective labor market tests and give U.S. workers an enforceable right to jobs for which they are qualified before admitting temporary foreign workers to compete with them. Congress should ensure the nondisplacement of American workers, ensure guest workers are paid at least market wages, and audit employers regularly for compliance. The rules that tether H-1B employees to the employer that sponsored them should be changed to allow them freedom to seek other employment after a short period, certainly no more than one year. The current system is simply broken, allowing the programs to run out of control and work against their stated purposes.

I know of no business leaders who believe Hira's proposals would help our economy grow or improve the lot of our citizens.  I also know, as do my business immigration clients, that many of Hira's proposals are already contained in existing immigration laws and regulations.  The Immigration and Nationality Act is replete with labor market tests, audit powers of immigration agencies, and the ability of an H-1B worker to become untethered from one's current employer through provisions allowing job portability.

Hira is right, however, about one thing: 

If the goal of our skilled-immigration policy is to capture the best and brightest, then we ought to align our policies to meet those goals. In order to make that alignment we need far better information on how the guest worker visa programs and employment-based permanent residence are connected.

Current employment-based immigration rules do not promote the economic needs of the nation and the well being of our citizens. The laws, regulations and procedures, based largely on outdated legislation passed in 1990, with modest accretions every few years, hamper the ability of American businesses to create jobs in this country for citizens and non-citizens alike. 

If we are to achieve enlightened business immigration reforms, American employers must "out" themselves.  They must not be afraid to acknowledge and explain in very public ways that they use legitimate means under exisiting immigration rules to increase profitability and prosperity for Amercan stakeholders.  They must overcome their understandable fear of a certain maxim ("the nail that sticks up gets hammered"). Instead, they must visibly support changes that would take the "dys" out of "dysfunction" when describing the nation's immigration laws.

Immigration Frugality and Fiscal Responsibility

When the snowpocalypse ends in Washington, and political hot air thaws the frozen streets, expect to see mules and elephants parade in bipartisan togetherness -- at least in one area.  The party of Lincoln and the party of tea could well agree with the following words of President Obama on the urgency of fiscal responsibility (even as they disagree on whether the trimming of deficits has begun in earnest):

[A]t a time when we face not only a fiscal crisis, but also a host of difficult challenges as a nation, business as usual in Washington just won’t do. . . . After years of irresponsibility, we are once again taking responsibility for every dollar we spend, the same way families do.

Why then are partisans on both sides of the aisle not roundly applauding the recent dollar-pinching actions of a U.S. District Court judge in Texas?  Last week in U.S. v. Ordones-Soto, et al., the judge ordered the United States Attorney and the Assistant United States Attorney when prosecuting cases pursuant to 8 U.S.C. § 1326 to be prepared "in all future sentencings to state the substantive reason(s) for the prosecution of each individual case." 8 U.S.C. § 1326 punishes the illegal entry to the U.S. of a person previously deported.

Citing three illegal-reentry cases before the court, the judge noted that county jail payments for six months of incarcerating the convicted defendants ("with no significant criminal history") cost taxpayers over $13,500. This sum pales in comparison to the costs in time and money of court personnel salaries and operating expenses, and those of the U.S. Attorneys Office, the U.S. Marshal's Service, the U.S. Probation Office, payments to appointed defense counsel and Federal Public Defenders, interpreters, medical and dental care providers, and drivers transporting defendants to and from the jail.

With "every judge in the Western District of Texas . . . sentencing a substantial number of illegal [entrants and reentrants] every month," the judge berated the government for its spendthrift ways:

The expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling.  The U.S. Attorney's policy of prosecuting all aliens presents a cost to the American taxpayer at this time that is neither meritorious nor reasonable.

The cost to taxpayers of the removal machinery (and I'm not talking snow here but people) will only grow if, as described in a reportthis month by the American Bar Association (ABA) Commission on Immigration and Arnold & Porter, the Executive Office for Immigration Review is to be given the authority, resources and judges sufficient to match the number of cases in immigration court with the expensive demands of due process as the ABA House of Delegates proposes.

My point is not that we emulate Scrooge McDuck to hoard the few remaining dollars in the public coffers, thereby giving up on enforcement of the immigration laws.  Rather, we need due process in removal proceedings and in federal court, but also a wise and fiscally sound exercise of prosecutorial and presidentialdiscretion.  It's time to stanch the unending flow of "aliens without any significant criminal record" into over-crowded county jails, immigration detention facilities and immigration courts.  Federal Courts should be the place where U.S. Attorneys bring to justice very bad people: Ponzi-scheme perpetrators; Medicare and mortgage fraudsters; drug traffickers; cybercriminals, RICO conspirators, insider traders and givers and takers of bribes. 

In other words, it's way past time for the Obama Administration and Congress to push really hard on bipartisan and comprehensive immigration reform or or for the President to exercise his discretionary power proactively to address this immigration fiscal fiasco, while striking a blow against terrorism, with user-fee-financed grants of deferred action and employment authorization.

An Immigration Signature Story Yet Untold: How Far a Modern Quill Doth Come Too Short

Immigration policies at today's USCIS may change in a flash. They can be announced and then, without forewarning or explanation, withdrawn in the milliseconds it takes for the agency's webmaster at www.uscis.gov to push the upload and delete buttons.  At times they are as reliable and ephemeral as the inducements of a carnival barker.  Take for example a January 19, 2010 policy memo, "Signatures on Applications and Petitions Filed with USCIS" (penned by USCIS Acting Deputy Director, Lauren Kielsmeier). The memo appeared evanescently and then, as Ron Ziegler, Richard Nixon's former press secretary in the Watergate era, might have said, it became "inoperative." 

While it lasted, the disappearing memo decreed:

An application or petition signed by counsel (other than in-house counsel who meets the qualified agent requirements stated above) or by any other outside agent does not meet the [authorized signature] requirements of 8 CFR 103.2(a)(2).

USCIS will reject any filing that does not contain a proper signature by the applicant . . . or petitioner or qualified agent for any applications and petitions received after the date of this Memo. USCIS is reaffirming this policy to preserve benefit integrity and to ensure that only those representatives authorized pursuant to the regulations file applications or petitions with USCIS.

USCIS acknowledged in the vanishing memo that, in the near-term past, agency practices on signature requirements had been inconsistent:

Recently, USCIS has seen varied practices related to signatures on forms. These practices have included: (1) applications or petitions without the required signature of the actual applicant or petitioner, and (2) applications and petitions signed by a Form G-28, Notice of Entry of Appearance as Attorney or Representative, authorized representative or individuals claiming authority to act on behalf of an alien through a power of attorney. These varied practices, in certain instances, are attributable to practitioner reliance on agency correspondence in individual cases, rather than formal policy guidance.

The assertion in the last quoted sentence, pointing to "agency correspondence in individual cases" as the grant of permission for attorneys to sign petitions and applications on behalf of clients, is not, however, the full story.

As recently as April 4, 2008, USCIS's website, on a page entitled, "Signature Requirements for USCIS Forms," stated:

Legal Requirements for the Signature on Petitions and Immigration Benefits Applications . . .

Attorneys and Accredited Representatives: The signature of any attorney or accredited representative who has been granted legal authorization to sign on behalf of the petitioner or the applicant must be in the original. (Italics added.)

The April 4, 2008 USCIS website posting is consistent with immigration case law. See, Santiglia v. Sun Microsystems, Inc., a case, ironically, in which Sun was then represented by a private practioner who is now the current USCIS Chief Counsel. In Santiglia, the Administrative Law Judge rejected a challenge to signatures on H-1B Labor Condition Applications even though the forms were not signed personally by the employer's HR manager, where the manager had authorized outside counsel to sign on the company's behalf.

Without explanation, however, on April 16, 2008, USCIS's webmaster posted an update to "Signature Requirements for USCIS Forms" that removed the permission given until April 4, 2008 for attorneys to sign immigration petitions and applications if "granted legal authorization to sign" on the client's behalf. 

Regrettably, as I've noted in a prior post, this type of bait and switch has happened before with USCIS's website, e.g., when the agency posted and then withdrew without explanation a revised I-9:  "Untruth in Advertising: The Mysterious 'Rebranding' of Immigration Form I-9."

To its credit this time, however, USCIS has offered a semi-public explanation (albeit not on www.uscis.gov) to the American Immigration Lawyers Association (AILA):

AILA liaison has been informed that a USCIS memorandum dated January 19, 2010, addressing signature requirements on applications and petitions, was posted to the USCIS website prematurely and is being withdrawn. USCIS intends to conduct a stakeholder engagement event early next week to discuss development and implementation of policies on signature requirements for applications and petitions. Watch InfoNet for further information." AILA InfoNet Doc. No. 10020463 (posted Feb. 4, 2010).

Even more refreshing than the agency's explanation, USCIS, quite commendably, is reaching out for the views of the stakeholder community.   Foreseeably, stakeholders will likely note that the shuttling of forms prepared by attorneys to clients for signature and the return of the documents to the lawyer for submission to USCIS create unaffordable delays (especially given the Labor Department's tardiness in issuing Labor Condition Applications, often just before, and sometimes after, an impending H-1B status expiration and filing deadline).  The public will likely explain that the "client's original signature" requirement benefits no one other than the overnight courier industry.  Perhaps, in addition, the technorati will urge USCIS to forgo ink and go digital by embracing the Government Paperwork Elimination Act, a statute that authorizes the submission of government forms with electronic signatures.  

The Urban Dictionary defines a "signature" accurately (at least in describing my penmanship) as "[w]hen someone writes his/her own name in cursive, usually illegible."  The Bard in Sonnet 83 proclaims: "How far a modern quill doth come too short."  After stakeholder consultation, may USCIS (cross your fingers) not come up too short, and instead choose bytes over pen and ink, and until then, continue to permit the legitimate use of a client's power of attorney for lawyers to sign immigration petitions and applications.

Immigration Strength in Numbers - AILA Makes Me Proud to Be a Member

I've not always seen eye to eye with AILA -- the American Immigration Lawyers Association -- although I've been a supportive member and active participant in its programs and initiatives for decades, and served on its Board of Governors from 1987 to 1994.  At times I grow increasingly dispirited as the interests of its many members too often seemed at cross purposes, and its understandable dependence on revenue from publications and educational programs made me fear that it had lost some of the fire in its belly and some of its soul. 

I often wax nostalgic about the early days of AILA.  I miss the days when one could leave an AILA conference inspired by its grizzled fighters for immigration justice, with none more inspiring than the late Sam Williamson of Texas. I search the AILA website and, sadly, find little residue of Sam's influence, other than a "Mentor Award" in his name, given since 1992 for "outstanding efforts and excellent counsel to immigration attorneys by providing mentoring assistance." I'm happy that AILA honors Sam's memory but don't remember him so much as a mentor than an inspiring firebrand who would stand up, point a curled, arthritic finger in the air and shout in reference to the immigration authorities: "Sue the [illegitimate offspring]!" 

Sam inspired me because his views, reflected in a 1989 article, were much the same as my own:

. . .if you have a sense of injustice, you will feel anger and outrage, and you, too, will come to look upon the law as a weapon, which it is, and with which you can venture to assuage such injustice and lift these people [immigrants to America] from their degradation. I find such efforts to be worthy. What appears anomalous to me is to find that others do not feel as I do.

I always left every AILA conference where Sam cried out in righteous indignation freshly energized to pursue my clients' interest as zealously as possible within the all too draconian constraints of America's immigration laws.  Recent AILA conferences have never been the same without Sam (although many new and old members, to be sure, have achieved marvelous outcomes in their immigration cases, while generously mentoring lawyers and modeling best practices in the quest for immigration justice).

Something happened this week, however, to remind me that the spirit of Sam still exists and shines brightly in AILA.  In an eloquent, persuasive and lawyerly 24 pages, AILA's USCIS Headquarters Liaison Committee unmasked as exercises in vacuous reasoning a January 8, 2010 USCIS policy memorandum (and kindred non-precedent decisions of the USCIS Administrative Appeals Office) that deny employment-based immigration benefits to working owners of companies. Although the Obama Administration has proclaimed that the United States government does not engage in torture, the AILA Liaison Committee's letter to the USCIS Chief Counsel, in a calm and dispassionate way (certainly not in Sam's style), demonstrates that USCIS tortures logic and smites reason: 

[Our correspondence] relates to recent USCIS Administrative Appeals Office decisions and USCIS Service Center adjudications, as well as the [January 8] Neufeld Memorandum, that misapply the reasoning of Supreme Court cases . . . to reach the conclusion that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot -- in most cases -- be a beneficiary of a nonimmigrant (e.g., L-1, H-1B and O-1) or immigrant employment-based petition. We strongly believe that this USCIS position departs from longstanding binding precedent, ignores the plain language of the Immigration and Nationality Act (INA) and its implementing regulations, thwarts Congressional intent respecting the purpose of the INA, and leads to absurd results.

My point here is not to repeat AILA's arguments for the absurdity and illegality of USCIS's reconstruction of immigration jurisprudence and history to ban a class of otherwise deserving entrepreneurs (I've already offered my views on the subject).  Rather, I applaud the AILA Liaison Committee's letter because it reminds me that, despite my occasional misgivings about organizational drift and the challenges of speaking in a unified voice, AILA retains the depth of soul and conflagration of belly that makes me (and I hope Sam as well) very proud to stand within its ranks.

Must We Downsize Hopes for Full-Bodied Immigration Reform?

The week's news dealt a body-blow to the prospects for comprehensive immigration reform, as if the movement to fix our broken immigration laws were blind-sided in a collision with a former pinup driving a pickup -- which it was.  With the election of new Massachusetts Senator, Scott Brown, to take the seat of the late Ted Kennedy, the godfather of more humane and just immigration laws, supporters of CIR (Comprehensive Immigration Reform) are swallowing their sadness and putting on their game faces, saying there's still no stopping the CIR train from arriving at its destination.

It's hard to maintain optimism, however, as President Obama's pledge to move on CIR within his first year in office reached its anniversary and expired.  Worse yet, soundings from the White House suggest that the Administration will wait for Congress to take the lead on CIR. 

There's no telling what Congress will do as Democrats remain engaged in trying to put the wheels back on health-care legislation.  Already a group of Republicans and Democrats are building a BRIDGE that would offer no footpath, however tortuous, to citizenship for the undocumented (BRIDGE being the syntax-shattering formal name of H. Res. 1026, the Bipartisan Reform of Immigration through Defining Good Enforcement resolution). Adding to the pessimism, Sen. Kennedy's erstwhile CIR partner, Sen. John McCain, although still assertedly a CIR supporter, offers doubts that it will come to pass in this election year.

Throwing a clanking crowbar into the wheels, the Supreme Court's Citizens United decision will allow anti- and pro-CIR organizations to spend unlimited funds, unleashed from the prior restraints of the Federal Election Commission's spending caps. While some in the pro-CIR camp view the ruling as a positive development, the greater likelihood is that the opponents of CIR will offer untruths on the economic harms of CIR to frighten a financially-beleaguered citizenry who still favor CIR.

While we wait to see if the CIRistas can outjump Evel Knievel, there is still the possibility, however, for the undocumented to try and remain longer in the hopes that CIR someday will arrive, especially if they can "lawyer up."  SCOTUS ruled this week that even though Congress has the power to strip the courts of jurisdiction to review discretionary immigration-agency decisions, the Executive Branch may not, by regulation, label its actions "discretionary" and thereby prevent immigrants from seeking justice in federal court.

So, the wheels on the CIR bus go round and round . . . all year long.

Please Tweet Me an H-1B

For those of us in advanced stages of decrepitude who still remember what it was like to practice immigration law before the advent of broadband and universal Web access, the immigration process was much simpler then. Unlike today (with the e-publication of new nonbinding "policies" posted on www.uscis.gov as press releases, FAQs and agency memoranda), immigration rulemaking in the pre-Internet era followed a predictable pattern.

The old INS (the Immigration and Naturalization Service) took a a well-worn path when proposing a new regulation.  First the agency would draft a suggested rule and seek approval from the Office of Management and Budget (OMB).  Sometimes, OMB would approve the rule without change, and at other times, it would send INS back to the drawing board to retool the rule. Next, after OMB green-lighting, INS would arrange for the proposal's publication in the Federal Register.  Then, the public, especially stakeholders with an interest in immigration, would have 30 or 60 days to comment on the suggested change.  Finally, the INS reviewed the comments and published a final rule with the announcement of an immediate or future effective date. 

Accompanying both the proposed and the final rule would be a section entitled, "Supplementary Information."  This is the section, I'll call it the preface, that explained the INS's thinking.  The preface to a proposed rule would tell why the INS thought the change in regulations was necessary, the circumstances in which the rule would and would not apply, and the legal consequences in terms of eligibility for a particular immigration benefit.  The preface to the final rule would offer INS's response to the public's comments, make some changes after the public had road-tested the concept, while rejecting others, and offer additional, more definitive legal analysis and agency interpretations. 

Immigration lawyers loved these prefaces, even though they never made it into the Code of Federal Regulations, because a preface could be cited in future situations whenever a new adjudicator tried to claim that the text of a regulation meant something other than that which the old INS had explained in the Supplementary Information.  The prefaces therefore kept everyone honest. Moreover, pre-screening by OMB meant that an independent set of eyes within the White House took pains to be sure that the proposal made sense and followed statutes and executive orders on proper rulemaking procedures. The system worked.

In the 21st Century, however, everything (including the release of new immigration "rules") happens at Internet speed.  While we all love our "app for this" and "app for that," too much digitial sharing, as Jaron Lanier (the early online evangelist who coined the term "virtual reality") warns in his new "manifesto" (You Are Not a Gadget), can create a "global mush." 

The global mush is extra thick when U.S. Citizenship and Immigration Services (USCIS) pours out new changes on its home page.  Case in point:  USCIS Headquarters January 8, 2010 memorandum, a porridge of new and indigestible pronouncements entitled "Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements." In true shrink-wrap-software style, the memo comes complete with its own FAQ.

The memo and FAQ spell out how USCIS immigration officers at the Regional Service Centers, from this day forward, are permitted to decide, in a variety of fact patterns, whether a prospective H-1B worker will be considered legitimately "employed" by the enterprise petitioning for his or her services.  To its credit, USCIS acknowledges that the touchstone for approval is that the petitioner will have the "right to control" over "when, where, and how" the H-1B nonimmigrant performs the work, even if there is no proof that actual control of the person's work will occur.   This right to control, USCIS notes, is often difficult to recognize in the modern world of work, where vendor personnel and consultants, who are paid by a contractor, render services that look like "work" at various customer worksites. That's why the memo authorizes adjudicators to ask for an array of contractual paperwork.

The enterprise must also establish that the "right to control," according to USCIS, "will continue to exist throughout the duration of the [H-1B worker's] employment term with the petitioner."  The "throughout the duration" requirement will be shown by the existence of a contract with a specified term.  Thus, if the contract runs for merely a year, USCIS reasons, the agency will approve the H-1B petition only for one year (ironically, all the better for cash-strapped USCIS to collect more user fees when the time for H-1B petition extension arrives).  After all, USCIS explains, its H-1B regulations require submission of an itinerary if the H-1B nonimmigrant will work at more than one job site, especially at a site neither owned nor controlled by the H-1B petitioner.

USCIS's allegiance to the "right to control" versus "actual control" distinction lasts no longer, however, than the twinkle in a digital avatar's eye. By Page 6, Footnote 9, of its memo, USCIS announces that "an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him [sic] or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite 'control.'"  What kind of control? The right to control? Or, the actual exercise of control?  USCIS fudges and doesn't say.  Even more confusingly, USCIS admits in the same footnote that "a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner." 

Wait a minute.  If a sole owner of a company can be "employed" by that company and if the company is a separate legal entity from its sole owner, then how is it that the "beneficiary [the H-1B worker, a natural person] . . . is also the petitioner [the company, a legal entity that is distinct from its living owner]"?  Apparently, to USCIS, the sole owner of a company is also the company, and the company is also the sole owner, even though they are "separate," and the stock-owning human can be "employed" by the legal entity, but not for H-1B purposes, even if s/he has the bylaw-given  "right to control" the way the H-1B human does his job.   In short, Footnote 9 is unadulterated gobbledygook. 

Harkening back to immigration's bygone era, this blogging geezer asserts that the OMB of old would never have allowed such mush to splatter the pages of the Federal Register.  Perhaps even the current OMB, notwithstanding the celebrated meanderings of its current director, would likewise reject the turgid spillage of the USCIS's January 8 memo. Why am I so sure?  Because INS -- in 1998 -- published a proposed rule covering the very same subject.  As the late William F. Buckley, in one of his less articulate moments, might have said: "You Could Look It Up."  Check out the INS preface at 63 Federal Register 30419 (June 4, 1998): 

Since promulgation of [the H-1B] regulation [requiring submission of an itinerary if the H-1B worker will perform services in more than one location] . . . many industries in the United States, such as the health care and computer consulting industries, have begun to rely more frequently on the use of contract workers. It has been the experience of the Service that many bona fide businesses which provide contract workers to certain industries under the H–1B classification have experienced difficulty in providing complete and detailed itineraries due to the unique employment practices of such industries. For example, companies which are in the business of contracting out physical therapists or computer professionals often get requests from customers to fill a position with as little as 1 day advance notice. Clearly an H–1B petitioner in this situation could not know of all particular contract jobs at the time that it first files the H–1B petition with the Service. As a result, many such bona fide employment contractors do not know all of the locations where a contract worker will be employed at the time the Form I–129, Petition for a Nonimmigrant Worker, is initially filed.

Moreover, some employers who use the H–1B classification may have a legitimate, but unforeseeable, need to transfer their employees on short notice from one work site to another within the organization, such as from the employer’s Los Angeles office to its New York office. Under the current regulation, however, such an employer is required to submit with its petition a complete itinerary listing all of the locations where the contract workers will be employed. The regulation as now written, therefore, does not fully reflect current legitimate business practices.

In response to these problems, the Service now proposes to amend its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR 214.2(h)(2)(i)(F) to allow certain petitioners to submit a general statement describing the locations where the alien is to be employed, thereby eliminating the necessity of submitting a complete itinerary. A complete itinerary must be submitted only in those instances where the employer is aware of the actual itinerary or where the petitioner is an agent that does not actually employ the beneficiary but merely represents the alien and the alien’s employer. In those instances where the employer does not yet know the alien’s complete itinerary at the time the petition is filed, the employer must submit, in lieu of a complete itinerary, a list of the places where it knows the beneficiary will definitely be employed, together with a description of the alien’s job duties at those locations. In addition, the employer must submit, to the extent possible, a list describing the alien’s possible places of employment and the duties which the alien would perform at such locations. The employer may also be asked to submit a letter with the petition describing its past hiring practices, including a list of past places where it has employed similarly situated persons. The letter must describe the employer’s tentative plans to use the beneficiary in an H–1B capacity in the future. However, the absence of a past hiring practice is not a bar to the approval of the petition.

So in the good old days, INS didn't require a contract that would run for as long as the maximum period of H-1B petition validity (then as now, for three years).  It didn't make an elaborate fuss over the employer-employee relationship.  It honored Matter of Aphrodite's holding that a corporation is distinct from its sole shareholder and that the former could receive approval of an H-1B petition on behalf of the latter.  Curiously, however, for reasons never explained, INS never promulgated a final rule on the subject, even though its well-reasoned views on the sufficiency of evidence in H-1B cases are forthrightly and clearly stated in the 1998 proposed rule. 

USCIS apparently didn't want to follow the prescribed path by picking up where the 1998 proposal left off, explaining what had changed in business practices or immigration laws, and then proceeding with the OMB-proposed-rule/final-rule approach.  Instead, we get tainted mush, delivered electronically, with no chance for stakeholder or stockholder comment. 

Why have the "legitimate business practices" of 1998 become illegitimate, or at least highly suspect and requiring reams of long-term contractual proof, in 2010.  USCIS's January 8 memo and companion FAQ never say.  We at least can hope that the agency will tweet us its answer on Twitter.