Angelo Paparelli on Dysfunctional Government

Immigration Snare - Stealth Visa Refusals Entrap Visa Waiver Travelers

Until recently, travelers to the U.S. under the Visa Waiver Permanent Program have enjoyed seemingly hassle-free entry to the United States.  If you hail from (or now hold citizenship in) one of 35 favored countries, the process is simple.  Go online to a website, ESTA (Electronic System of Travel Authorization), answer a few questions, get a green light to proceed, purchase a round-trip ticket and hop on a plane with just your passport as your entry document.  Sure you waive a host of procedural rights, but with the value of the dollar plummeting, the shopping bargains in the U.S. are just too good to let legal technicalities get in the way of real deals.

These idyllic journeys, however, are about to be ruined, if a recent immigration bar practice alert (AILA InfoNet Doc. No. 09110565) outlining the reported views of U.S. Customs and Border Protection (CBP), holds true. The trip-spoiler is a little known provision of the Immigration and Nationality Act (INA), known as § 221(g).  As a Congressional Research Report describes it, § 221(g) involves a ground for rejection of a visa application on the basis that "[the applicant] did not comply with provisions in the INA (technically referred to as § 221(g) noncompliance)."  In fiscal year 2008, according to the State Department, consular officers relied on this provision to refuse 589,418 nonimmigrant visas but were then persuaded that in 510,549 of these applications the § 221(g) ground of noncompliance had been "overcome."

So why is this (in most cases) temporary determination of visa ineligibility the bane of visa waiver travelers?  The answer lies in a single question on the ESTA online form ("Have you ever been denied a U.S. visa?").  The State Department and CBP apparently agree that even a fleeting and ultimately overturned § 221(g) determination of ineligibility to receive a visa is a visa "denial" that requires a "yes" answer to this ESTA question.  The problem, however, is that most visa applicants never realize that a § 221(g) determination involves a visa refusal.  Most think, and are told by consular officers, that the visa cannot be issued because "administrative processing" (a euphemism for a security clearance) must take place before a visa will be granted or that the applicant must produce a missing document that stands in the way of visa issuance.  As a result, well-intentioned visa-waiver applicants will answer "no" to the "ever-had-a-visa-denied" question on ESTA. 

When this technically inaccurate answer begins to roost in federal immigration databases, as State Department digital records are increasingly merged with those of CBP, unsuspecting visa-waiver travelers may well find an ugly surprise at the U.S. port of entry or pre-flight inspection post.  A CBP inspector may be waiting to accuse the sojourner of willfuland material misrepresentation or fraud in an effort to gain an immigration benefit (a ground of lifelong inadmissibility under the INA).  Worse yet, the inspector has the power to issue an order of expedited removal (a deportation order that carries with it a five-year bar on returning to the U.S.) and put the traveler on the next flight back home.  This is more expensive than bargain-hungry visa waiver travelers ever expect to pay.

Obviously, then, the safe answer appears to be that any temporary refusal to issue a visa requires disclosure on the ESTA application.  The automated ESTA response may thus be that the applicant is refused permission to travel visa-free, and must apply for a visa at a U.S. consular post.  Is this what Congress had in mind when it sought to grant easy entry to nationals of countries with low-fraud immigration profiles and relieve consular posts of the burden of approving huge numbers of visitor visas?  Probably not.  Why then is an ambiguous and evanescent technicality risking unwelcome encounters with legitimate visitors to the United States?  Ask the hyper-technical bureaucrats and police agents at State and CBP.

A Most Unwelcome Immigration Welcome for Returning Permanent Residents

Reports on immigration lawyer listserves are mounting.  Shocked and frightened lawful permanent residents (LPRS) are reporting similar incidents in calls to immigration lawyers. The Department of Homeland Security (DHS), apparently in cooperation with state and federal police agencies, has at last merged many of the country's previously siloed law enforcement databases and, as a result, is receiving increasing numbers of hits on decades-old criminal incidents when LPRs return from travel abroad.

The real-life scenario often plays out like this.  U.S. Customs and Border Protection (CBP) officers take the arriving LPR from the point of first contact (primary inspection) to a back room (secondary inspection) as startled American-citizen family members look on. Questions are asked about what may be a long-forgotten event, one or more arrests or convictions, perhaps decades old, even though fines have been paid and time served.  The LPR (whose green card and passport are confiscated) is either held in custody or given an appointment for a deferred inspection at a CBP district office and told to bring criminal court records to try and clear the matter.  Often, the LPR finds that all or the bulk of the court records no longer exist.  At the deferred inspection, the CBP inspector -- unable to sort out the prior incident(s) -- has little choice but to refer the matter to the immigration court for a removal (deportation) hearing.  Issued a Notice to Appear for removal hearing, the LPR joins a cast the size of a Cecil B. DeMille epic as one more Respondent among thousands.

This is when immigration administrative proceedings reminiscent of Kafka's The Trial begin.  Immigration judges (IJs) with overflowing dockets face emotional stress from the unrelenting and growing tide of new and old cases.  Government attorneys, many new admittees, others grizzled lifers waiting longingly for retirement, wheel shopping carts of case folders into the courtrooms but frequently cannot locate the files for many a Respondent in court that day.  Immigration lawyers, some able and diligent, others barely (or perhaps not) competent, try to demonstrate that the incidents in question do not warrant deportation or that the law allows "relief from removal."  All this happens while growing throngs of immigrant detainees languish in federal, state and contractor-run immigration prisons, and DHS bids out contracts to build more and more detention space, like the pending bid for a 2,200-bed facility in or near Los Angeles. "Master Calendar" hearings -- where many in the crowded court rooms lack legal representation -- are held and concluded in rapid sequence.  IJs order removal, grant voluntary departure in lieu of deportation, and schedule merits hearings on the "Individual Calendar" to try cases in which legal defenses are raised or relief from removal is sought.

LPRs -- especially those in the U.S. for many years -- when contemplating the prospect of appearing in immigration court, usually move through the classic Kübler-Ross phases of grief: Denial, Anger, Bargaining, Depression and Acceptance.  Hiring a lawyer during the Denial phase often occurs.  The sense of disbelief leads to the insouciant selection of immigration legal counsel.  The Denial phase may also be prolonged by a mistaken belief that the conviction is a small matter -- too often attributable to the errant assurances of criminal defense counsel that no adverse immigration consequences would arise or that an expungement would erase all traces from the LPR's record.

LPRs are best advised to take IJ proceedings seriously.  The pursuit of happiness, liberty, proximity to family and friends, and financial assets -- all are at risk in the immigration court, and in the appellate proceedings that follow with the similarly strapped Board of Immigration Appeals and the Federal Court of Appeal.  Whether retaining pro bono representation or private counsel, LPRs -- much like the sick or diseased facing long-term disability or death -- must not wholly relinquish control of their circumstances to professionals.  They must "own" their case, participate in strategic decisions, help provide witnesses and supporting evidence, and be prepared to fight hard to retain the right of lifelong permanent residence and eligibility for citizenship in the United States.   

The international travel industry will hate me for saying so, but LPRs with a blemished past probably should consider staycations rather than foreign vacations if the return trip requires running through the harrowing gauntlet of immigration court proceedings.

Immigration Rhinoplasty Will Kill the Health Care Overhaul

Our lawmakers are again behaving badly in public over illegal immigration. This time the tussle threatens passage of health care reform legislation. The latest contentious debate, as the New York Times reports, revolves around a slew of issues.

Among these is whether unauthorized migrants -- who will be subject to the mandate that all purchase health insurance -- will be allowed to use their own money to buy coverage from the public exchanges. Another is whether uninsured legal immigrants  -- who must also buy their own insurance -- will be barred from insurance-premium subsidies until long waiting periods have elapsed.  Still another is whether "mixed-status" families (consisting of citizens and legal and illegal immigrants) will be ineligible for subsidies because the formula for calculating their household expenses will disregard the living costs of the undocumented in their midst.

If these proposals become law, they will be hideous examples of taking the immigration scalpel to the public's nose just to spite its face. The Senate and Congress would be wise instead to heed a lesson in morality and pragmatism from pronouncements last month in the Vatican and the White House honoring a famous immigrant. On October 11, Pope Benedict XVI canonized a priest, Damien de Veuster, who immigrated from Belgium to what is now the 50th U.S. state.  Two days earlier President Obama, a native of Hawaii, applauded the forthcoming sainthood of St. Damien of Molokai with these words:

Fr. Damien has . . . earned a special place in the hearts of Hawaiians. I recall many stories from my youth about his tireless work there to care for those suffering from leprosy who had been cast out. Following in the steps of Jesus’ ministry to the lepers, Fr. Damien challenged the stigmatizing effects of disease, giving voice to the voiceless and ultimately sacrificing his own life to bring dignity to so many.

In our own time as millions around the world suffer from disease, especially the pandemic of HIV/AIDS, we should draw on the example of Fr. Damien’s resolve in answering the urgent call to heal and care for the sick.

Not since the unrepentant Lou Dobbs tried to tie illegal immigration to the false claim by his show's reporter, Christine Romans, of a huge increase in recorded cases of leprosy (7,000 in a recent three-year period, she claimed, although the actual figure was 434) has the disfiguring malady known as Hansen's disease received such public attention. (Truth be told, this ancient disease persists in its power to instill irrational fear, although its incidence is extremely low and modern medicine found a cure in the 1930s.)

Still, conflating and inflating irrational fears of immigrants and of disease may do what threats of death panels and pulling the plug on grandma could not do.  The cynical opponents of health care for all and of comprehensive immigration reform must be silently smirking as they paraphrase H. L. Mencken's defamatory coinage, "No one ever failed to kill health care by underestimating the intelligence of the American people." The pragmatic and compassionate among us, however, must remind the public and our lawmakers that pandemics scoff at national boundaries and that the "urgent call to heal and care for the sick" will be heard sooner (while preventative care can keep costs low) or later (when those in extremis without coverage drive up costs for all, as they now do, in emergency rooms across America).

Talkin' Immigration with Chuck Kuck: FDNS, CIR and Anti-Immigrant Tail-Spinners

Last Tuesday, Chuck Kuck, immediate Past-Prez of AILA, and I covered the landscape of current developments in U.S. immigration law and policy on "The Immigration Hour," Chuck's weekly program on America's Web Radio.  If you've grown weary of the health-care debate and are hankering for the next large public controversy, give a listen. 

We covered the origin and current exploits of the USCIS Fraud Detection and National Security (FDNS) unit, the latest meanderings of their outsourced compatriots who are paying visits to American employers from sea to shining sea, and the prodding of Sen. Grassley to find more and more perceived and real immigration fraud. 

Next, we offered predictions on the prospects for passage of comprehensive immigration reform (CIR) before the Congressional mid-term elections. We asked aloud whether the pro-immigration coalition will splinter if legalization's proponents push so hard for the unauthorized 12 million that the employer community is left empty-handed in its quest for increased H-1B and green-card quota numbers.  This would be a painful role reversal for the "split the bill" voices of the business community that abandoned the pro-immigrant community in 1996's enactment of the draconian Illegal Immigration Reform and Immigrant Responsibility Act.

We also asked whether the birthers and tea-baggers will morph into xenophobes and whether the anti-immigrant lawmakers in Congress will at last wake up and smell the strong Hispanic coffee, as the debate moves from health care to immigration.  Were our ruminations mere phrenological head-scratchings?  Or, did we make a valid point or two?  You decide, and then kindly comment on this blog.  All views are welcome.

U.S. Citizenship and Immigration SERVICES (REALLY!?!): Where the Wild Things Are

[Blogger's Note: Today's guest posting on immigration dysfunctionality offers a view on pop culture.  The parenthetical "(REALLY!?!)" in the title -- inserted as an editorial comment by the blog's usual author -- suggests the smarmy skepticism of an Amy Poehler and Seth Meyers riff on Saturday Night Live. The Haloween-themed guest post is by Nici Kersey, my colleague at Seyfarth Shaw LLP and a rising star in the immigration-lawyer firmament.]

For Halloween, I have decided to dress as Max from Where the Wild Things Are. I was not able to locate a Max costume at any of the traditional Halloween costume stores, so I channeled my former costume designer self, pulled out the sewing machine, and made one. I chose Max because the costume was much easier to make than the costume for any of the other “wild things” and because I have of late been feeling a lot like Max. Bottled up anger and frustration, often directed toward the immigration authorities, make me want to tear through the woods screaming. “Roar! Roar! ROAR!”

A recent example:

A colleague asked if I could help his friend with an immigration issue. For immigration attorneys, this is a frequent occurrence. Typically, the question is about a boyfriend, fiancée, friend, nanny, or neighbor who is in the U.S. “illegally.” Those discussions are often heartbreaking, as there is frequently not much that we can do to help.

This time, the discussion was upsetting for a different reason. A gentleman who had been in the U.S. for several years, working in H-1B status, complained that his wife was unable to obtain a driver’s license. The man’s employer had violated numerous immigration laws and regulations by requiring, for example, that he pay the costs and attorney fees associated with his H-1B visa petitions and with his labor certification application, but he was not interested in trying to recoup those costs (totaling more than $10,000). His main concern was that his wife was not able to drive.

In Atlanta, not being able to drive is a fairly serious disability, as public transportation is unreliable and inconvenient. This man’s wife was suffering from a frustrating lack of independence and a serious case of cabin fever. (Still, I was surprised by the lack of concern over the ten grand.)

Due to government error in issuing the H-4 approval notice to this man’s wife, the notice did not include a start date or an expiration date. When she went to the license branch, she was turned away, as her immigration document did not contain the information necessary for issuance of the license, and the SAVE (Systematic Alien Verification for Entitlements) system could not verify that she was legally allowed to be in the United States.

She tried contacting USCIS to correct the error and was told she would have a response within 45 days. (The wild things roared their terrible roars …) No response ever arrived. (… and gnashed their terrible teeth …) We contacted USCIS and SAVE to attempt to correct the error, and we were told that we would have a response within 45 days. (… and rolled their terrible eyes …) Again, no response ever arrived. (… and showed their terrible claws …) Because of the length of time the woman’s husband had spent in the U.S. in H-1B status, her H-4 status was only valid for 1 year, and by this time, nearly half of that year was already gone.

In the end, rather than continue to seek a revised approval notice or a driver’s license, the couple decided to move to Canada, where the gentleman has been offered a job. The good news is that the new employer treats its foreign national employees well and will pay all of the immigration-related costs for the couple’s move to Canada and for their maintenance of immigration-status in Canada. More good news? The man’s wife should be able to obtain a Canadian driver’s license. The bad news is that the U.S. lost a talented individual who had hoped to make the U.S. his permanent home. He had to uproot his family, which had lived in Atlanta for nearly a decade and had come to consider this his home. All of this, over something as simple as a driver’s license. Roar.

As has been noted in this blog in the past, USCIS does not offer an acceptable form of customer service. I accept that the government makes mistakes; we all do. But it should never take 45 days to correct a clear government error – an error that could be corrected by re-printing a single sheet of paper and sticking it in the mail. Here, it took more than 90 days to not correct the error or do anything at all to cure the problem. (If I regularly treated my clients this way, I would likely be not only fired but also disbarred.) It is due to problems like this that the U.S. is becoming a less desirable destination for so many talented individuals. It is due, in part, to our immigration system that the U.S. lost the recent bid to host the Olympics.

A Canadian friend recently called and said that his J-2 work authorization was set to expire and that he needed to extend it. “Is that something you can help me with?” he asked. I said that I would be glad to help. “So, can I just bring this down to your office and you can stamp it or something?” I explained that that was not exactly an accurate description of the extension process. “But I thought that attorneys were ‘officers of the court’ and that you could take care of these types of things.” Let the wild rumpus start!

Congress Gives Immigration-Agency's E-Verify Program Three More Years to Fail

Much like the drunk who looks near the street lamp for a lost key because that's the only place where there's light, House and Senate conferees have granted a three-year extension of life support to the still-tottering E-Verify system -- the only legit e-game in town for confirming employment eligibility. Congressional gamblers also double-downed on their E-Verify bet by approving an additional $137 million in the Homeland Security funding bill for the beleaguered program. 

Immediately the decision provoked controversy.  Republican Senator Jeff Sessions has said that three years is not enough.  The bill, according to Sessions, should have made E-Verify a permanent weapon in the government's employer-sanctions arsenal and should have placed into law the Obama-approved, Bush-era regulation -- effective since September 8 -- that requires inclusion of mandatory E-Verify workforce testing in new federal procurement contracts. 

Others upset by the Congressional action include E-Verify opponents who would scotch the system because it has not yet proven itself ready for prime time.  E-Verify does not detect borrowed or stolen identities.  It still flags about 4% of all queries as tentative non-confirmations (TNCs) of employment eligibility, adversely affecting a worker population of some nine million.  As the General Accountability Office (GAO) has reported, E-verify has caused the Social Security Administration electronic database to fail twice last summer for "extended" periods, causing GAO to worry about proposals that would make E-Verify mandatory for all employers:

[F]ederal legislation has been proposed to, among other things, require the use of the E-Verify program by employers across the nation. If such legislation is enacted, agency officials estimate that the number of queries to E-Verify could quickly surpass 60 million per year—nearly 10 times the number of requests in fiscal year 2008.

Even more troubling, as reported in the Harvard Law & Policy Review, is the risk of an increase in unlawful employment discrimination and worker firings.  Already wrongful termination lawsuits are blaming E-Verify as the trigger for job losses. Courts may therefore soon determine whether the DHS-endowed employer immunity from civil liability in its Memorandum of Understanding for good-faith reliance on the E-Verify database will close scrutiny. 

One federal court has issued a temporary restraining order (at p. 16) in a comparable employer-sanctions enforcement setting (involving the now repudiated Social-Security No-Match regulation) where the Homeland Security Department purported to grant immunity against civil liability for an employer’s good-faith reliance on a government-prescribed immigration-enforcement regimen.

President Obama is expected to sign the Homeland Security authorization, including the revivification of E-Verify. Time will tell whether the expected increase in litigation and adverse impacts on employers and lawfully authorized workers will have been worth Congress' expensive bet on the problem-plagued E-Verify program.

With the New G-28, Immigration Agency's Rugged Individualism Defies the Rule of Law

As a recent post by an immigration colleague notes, quite a brouhaha has erupted within the immigration bar and among purveyors of immigration case management software over a new outbreak of immigration singularity. The fuss this time involves an electronic form (the new G-28). Beginning October 30, a paper printout of a completed and signed "e-G-28" must be presented to U.S. Citizenship and Immigration Services (USCIS) every time a lawyer or an accredited nonprofit enters a "notice of entry of appearance" in order to represent a person or entity before the agency. The paper form G-28 has been in use for decades, and while the old G-28 has had its limitations, its passable functionality did not generate much heat.

Just like the angst produced by the State Department's online nonimmigrant visa application, the furor over the G-28 illustrates once again the failings of the Office of Management and Budget (OMB) in accepting at face value the assertions of federal agencies about the content and operations of the immigration laws. It also underscores the importance of submitting comments whenever a federal agency announces its intention to create or renew an immigration form and seeks OMB permission to do so under the Paperwork Reduction Act (PRA). Failure to comment on form changes, as the sorry G-28 episode reveals, risks much mischief and grief as the agency's deviant brand of rugged individualism has its way with public policy and makes mincemeat of the right to counsel and the rule of law.

As the G-28 PRA approval process began in June 2008, USCIS confessed to OMB that it had an "Oops. My bad!" moment:

Recently, USCIS took the lead in revising Form G 28 and developing a new Form G 28I for use in cases filed in agency offices outside the United States. During the review process, USCIS discovered that Form G 28 had never been approved by the [OMB] under the PRA.

As a result, USCIS sought and received emergency OMB approval of the G-28 form which had been in use since before 1983. (By the way, one ironic reason USCIS offered to justify emergency OMB action on the G-28 is particularly galling in light of the thousands of unannounced site visits that its FDNS unit has conducted in the last several weeks: "If correspondence is not sent to an applicant’s representative, DHS attorneys may be in jeopardy of violating state bar ethics rules by treating applicants as if they were not represented by an attorney").

USCIS tried to say that the lapse in PRA compliance arose with the legacy agency, Immigration and Naturalization Service (INS), which had relied on a PRA exception known as the "Administrative Action" exemption. But the new USCIS, in claiming to fess up, said that this exemption, found at 5 CFR 1320.4, "no longer applies and both Form G 28 and Form G 28I require OMB approval." The public record, however, nowhere shows the OMB taking USCIS to task by asking when, if ever, the Administrative Action exemption applied. The Administrative Action exemption, at least as early as 1997 and continuing to today, applies to adversarial proceedings initiated by an agency and clearly not to requests for administrative agency benefits of the type submitted to USCIS. The relevant provision applicable to USCIS allows reliance on the Administrative Action exemption only if agency action arises "during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities [emphasis added]."

This blatant violation of the "public protection" provisions of the PRA (see p. 13 of this Congressional Research Service report on the PRA) should have raised suspicions within OMB about the reliability of USCIS's explanation of the G-28 backstory. In essence the OMB allowed USCIS to blow off the comments criticizing the new G-28 by the American Immigration Lawyers Association (AILA)and two lawyers. In my view, the most trenchant of the comments came from AILA: "The proposed form does not adequately permit the entry of appearance for multiple parties."

While AILA correctly noted the absence of a box on the G-28 to confirm the attorney's representation of the "beneficiary" of an immigration petition and the legal interest of a new "receiving" employer in a green-card portability situation, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

• the regional center in an EB-5 immigrant investor petition;
• the guardian of a child's interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant;
• the corporate employer in its foreign workers' adjustment of status cases or the workers' family members' applications for extension or change of the family's nonimmigrant status;
• the estranged or divorced citizen or permanent resident spouse in a marriage-based petition to remove conditions on permanent residence; and
• the former "losing" employer in H-1B and green-card portability cases.

The G-28 -- indeed, the USCIS's regulations -- should be modified to recognize and allow representation of parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration issues. Homeland Security Secretary (and USCIS's departmental boss), Janet Napolitano, in one of her first interviews after her installation, told National Public Radio: "First of all, the rule of law applies on the border, and we want to make sure that that happens, No. 1."

With all respect Secretary Napolitano, your mission is more than just border integrity. The rule of law must also be applied vigorously and faithfully to the subordinate agencies which you oversee, particularly to USCIS.

Immigration Service Hits Arts Presenters in the Purse

[Blogger's Note:  This blog on dysfunctionality in the world of U.S. immigration law and policy welcomes principled and thoughtful commentary by guest writers.  Today's guest post is by Karin Wolman, a highly regarded New York immigration lawyer with an expertise in immigration issues affecting artists, entertainers and the venues where they perform.]

U.S. Citizenship and Immigration Services (USCIS) has released an October 7, 2009 News Release that will shake up the world of arts and entertainment.  The Release outlines new ground rules for O and P visa petitioners that will require every presenter on a single U.S. tour for a foreign performing artist to file separate visa petitions, with separate filing fees.  (O-1 visas are for individual aliens of extraordinary ability, P-1 visas are for internationally-recognized entertainment groups, and P-3 visas are for artists coming to the U.S. to perform in a culturally unique art form.)

Traditionally, regional theaters and non-profit venues in the U.S. have pooled their limited resources, making it financially possible without breaking the season budget on one show to present important works by foreign artists to American audiences.  The way this has worked until now is that one presenting theater or venue on the tour, sometimes a co-producer with the artist, would file a single visa petition for the foreign artist as the “employer” for the first stop on the tour, and as an “agent” for all the dates and venues with other U.S. employers. This one visa petition would cover every show on the U.S. tour, with evidence including the artist’s contracts with all the other U.S. presenters, and the other presenters would help defray other costs of the tour. 

Except now, the USCIS is claiming the regulations never allowed that (but they have, and they do).  The USCIS News Release claims that unless the initial presenting venue that would normally file one petition for a whole tour is “in business as an agent,” and has its own contracts with each of the other presenters as a “client,” every presenter must file its own petition. 

That’s right, the immigration service has decided that now is the time to dig deeper into the pockets of arts organizations, already drained by the economic crisis, to demand duplicative filing fees, and illegally re-write the rules in an informal document that blatantly contradicts current regulations.

The unsigned agency Release, which does not have the force of regulation, vaporizes a part of the existing regulations without actually going through the publication, notice and comment procedures required to change the regulations. It ratchets up filing fees at a time when the arts community can least afford them, by requiring separate petitions in a common situation previously covered by a single petition. 

The Release also adds a new evidentiary requirement, found nowhere in existing USCIS regulations:

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished by agent-Employer A submitting all of the [customarily] required evidence . . ., as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

Both this added evidentiary requirement, and the USCIS claim that any employer acting as an agent on behalf of other employers must also be “in business as an agent,” contradict the plain language and intent of the regulation at 8 CFR § 214.2(o)(2)(iv)(E), which states in part:

A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.  

Most tellingly, the regulation then divides into subsections -  (E)(1) applies to ”An agent performing the function of an employer,” (E)(2) applies to, “A person or company in business as an agent, ” and (E)(3) applies to “A foreign employer, who through a U.S. agent, files a petition.”  The plain language of the regulation belies the claim that an agent performing the function of an employer must also be “in business as an agent.” 

To see the impact of the Release, let’s look at a not untypical fictional example: 

Alba the Amazing is a Spanish aerialist/flamenco dancer/poet whose mixed-media performance art is the hottest show in Europe.  Alba has earned rave reviews in 15 countries.  An American theatre, the Cottage CoProducing Company, commissions  a new original work and invites Alba to give the opening performances of their 2009-2010 season, for three shows in mid-November 2009. Alba books additional U.S. gigs following this premiere, for three shows each with Petite Presenter,The Tiny Theatre and the Avant-Garde Arena, running through January 2010.  These three entities are small regional non-profit theatres, and are depending on Alba’s ticket sales to help maintain their subscriber base through this winter. All three were named as additional stops on Alba’s U.S. tour in the O-1 visa petition filed by the Cottage CoProducing Company, filed last week, with copies of Alba’s contracts with each presenter. The Cottage CoProducing Company is not in business as an agent, the other three presenters are not its clients, and they do not have separate contracts with Cottage CoProducing Company. The USCIS Release indicates that this petition will be approved only for the December shows at Cottage CoProducing Company, the subsequent dates will be refused, and the other three theatres will each be required to file a separate petition, incurring thousands of dollars in costs that exceed their budget.

The existing regulation explicitly permits the filing of “agent” petitions by one employer for other employers, so long as the contract between agent and foreign entertainer or artist is formalized. It does not state that one employer acting on behalf of itself and other employers must show that it is in business as an agent, nor does it require contracts between one employer and other employers.  Through this informal, unsigned Release, USCIS is attempting to invalidate 8 CFR  § 214.2(o)(2)(iv)(E)(1) and the second half of paragraph 8 CFR § 214.2(o)(2)(iv)(E), without amending the regulations or allowing any public comment. 

Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast.  

Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.

Immigration-Agency Handicappers Lose Their Wad and Their Way

The September 27 death of Pulitzer Prize winning columnist, William Safire, brought tears to throngs of readers who shared his passion for the English language (even as many disagreed with his politics). The passing on July 29 of Walter Cronkite, news anchor extraordinaire, America's most trusted person, evoked sadness among those who wistfully recalled an era when newscasters reported the day's events with fidelity and humility -- unlike the current crop who mostly ply their trade by sensationalizing reality and pumping their own celebrity.  The August 25 demise of Sen. Ted Kennedy, Lion of the Senate, probably brought an end to any semblance of true bipartisanship in the halls of our contentious Congress. 

Sadness and nostalgia aside, their deaths got me to thinking about a hard-to-justify policy of U.S. Immigrations and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) that has troubled me since it was announced last year.  The policy in question is the Faustian, nay Machiavellian, trade-off of an extra 17 months of work permission granted to foreign students in the STEM fields of science, technology, engineering and math, as long as their respective employers enroll "voluntarily" in E-Verify, the online database that confirms or denies the employment authorization of newly hired workers.

The 17-more-months rule has bothered me, first, because there is no logical connection between the E-Verify program and the grant of extra months of "optional practical training"(OPT) to STEM graduates, over and above the standard one year of OPT that all foreign students who graduate receive.  It's pure political horsetrading and handicapping -- nothing more. 

More disturbing, however, is the unstated notion that STEM students are somehow more important and valuable to the nation than students in the liberal arts. From where I stand, immigration bureaucrats are no more prescient prognosticators than the commissars of the old Soviet Union who tried but more often failed to guess correctly in attempting to grow their government-planned economy.  Like the Russian apparatchiks of old, the USCIS and ICE have no special expertise in picking winners and rejecting losers.  Their actions in authorizing the STEM/OPT/E-Verify exchange beg a fundamental question (posed in the New York Times Magazine by historian Diane Ravitch):

Why do we educate? We educate because we want citizens who are capable of taking responsibility for their lives and for our democracy. We want citizens who understand how their government works, who are knowledgeable about the history of their nation and other nations. We need citizens who are thoroughly educated in science. We need people who can communicate in other languages. We must ensure that every young person has the chance to engage in the arts. But because of our narrow-minded utilitarianism, we have forgotten what good education is.

Imagine that young Billy Safire, Wally Cronkite and Teddy Kennedy had all been born abroad but pursued a liberal arts education as foreign students in the United States.  Imagine further that each had all the human potential and talent that their actual lives later manifested. Would we have wanted the old INS, or do we want today's USCIS and ICE, deciding for U.S. employers and graduating foreign students which fields of study are more worthy?   Not then, not now, not ever.  Give all foreign students an extra 17 months of work authorization and let each blossom uniquely for the ultimate betterment of America.

Follow the Immigration Money

History teaches us a tried-and-true, gumshoe-inquisitor's method of uncovering scandal. As memorialized in the 1976 film, All the President's Men, former FBI agent, Mark Felt, unmasked as Deep Throat of Watergate fame, explained the approach to Washington Post reporter Bob Woodward:

Deep Throat: Follow the money.

Bob Woodward: What do you mean? Where?

Deep Throat: Oh, I can't tell you that.

Bob Woodward: But you could tell me that.

Deep Throat: No, I have to do this my way. You tell me what you know, and I'll confirm. I'll keep you in the right direction if I can, but that's all. Just ... follow the money.

Congress, or better yet, investigative journalists and documentary filmmakers, should take a cue from Deep Throat when it comes to pulling the covers off the scandal of immigration user fees.  Two years ago U.S. Citizenship and Immigration Services (USCIS) raised filing fees on average 66%.  Yesterday, the new USCIS Director, Alejandro Mayorkas, told reporters that the agency is considering another round of fee increases as well as budget cuts, although the 2007 increase was supposed to improve service on a consistent basis -- and that hasn't happened.  The USCIS Ombudsman, quoting the General Accounting Office (GAO), at page 19 in the Ombuds' 2009 annual report, recognized the pickle the agency is in when a plummeting economy put USCIS filing-fee revenue into freefall:

Challenges with USCIS Fee Funding Structure

USCIS, which is dependent on fees to finance its operations, is impacted by decreases in application/petition receipts, as during the reporting period. In discussing revenue stability, the GAO notes that “a decrease in application volume could significantly affect operations when an agency receives nearly all of its funding from application fees.” [Footnotes omitted.]

But to swallow the "bad-economy" explanation is to take a sucker punch.  There are many reasons why USCIS can't balance its budget, aside from the structural infeasibility of relying almost completely on user fees.  To name but a few:

• The USCIS unit, Fraud Detection and National Security (FDNS), has taken over the investigations functions of another bureau of Homeland Security, Immigration and Customs Enforcement (ICE).  FDNS has outsourced ICE's investigations functions to private detective agencies whose investigators are roaming the country to investigate nonimmigrant worker petitions. According to a January 2009 GAO report (p. 19), FDNS ran up a $99,000,000 tab in FY-2008 and FY-2009.  Why should law-abiding people and businesses who sponsor foreign citizens pay for the costs of agency mission creep when another agency (ICE) is charged with interior immigration enforcement?  What benefit (the putative reason for user fees) do they get over and above the benefit to all Americans of interior immigration law enforcement? 
• The Adjudicators at USCIS ignore legal requirements, fail to consider the evidence submitted, apply a higher-than-permitted burden of proof, and routinely insist on reams of burdensome and unnecessary documents in requests for evidence(RFEs). How much of the $1,134,000,000 spent in making decisions on immigration-benefits requests in FY-2008 and FY-2009 (ibid) went to illegal RFEs?
• USCIS "Modernization" and "Transformation" initiatives have been inching forward and backward for several years with little to show for the effort beyond a spiffy new USCIS website.  Where did that money go?

So unless a gullible public and stakeholder community want to swallow hard the agency's crocodile tears, perhaps some patriot out there should embrace Deep Throat's timeless advice: "Follow the money."