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Terabytes of text have already been generated in the course of extolling or excoriating President Obama for his November 20 Executive Actions on Immigration. The prolific foaming of bloviating mouths has mostly been prompted by the promise of deferred action and work permits for undocumented immigrants under the DACA and DAPA programs. Surprisingly, however, his equally profound measures to improve the legal immigration system have been lost in the GOP’s ongoing Sturm und Drang over what they dub “Executive Amnesty.”
Among these legal immigration reforms, an almost overlooked November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) invited the submission of individual and stakeholder recommendations to improve legal immigration. If the Obama Administration were to embrace the best of the recommendations submitted in response, many good things would flow from this crowd-sourcing initiative. Without involving or seeking the consent of Congress, the Administration could readily adopt a plethora of path-breaking innovations to our legal immigration system which would profoundly improve how this country welcomes and benefits from foreign strivers, entrepreneurs, scientists, students, investors and other worthy contributors.
As my colleagues, Gary Endelman and Cyrus Mehta put it recently:
At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.
The November 14 memorandum directed the Secretaries of Homeland Security and State to solicit proposals from stakeholders and the public to modernize the legal immigration and visa system. The Secretaries of DHS and DOS would then evaluate the proposals so submitted in consultation with several Cabinet members (the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education), and other federal officials (the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, and the Director of the Office of Science and Technology Policy). The official invitation to submit ideas took the form of a December 30 Notice of Request for Information, which allowed the submission of up to 30 pages of commentary by January 29. The comment period has closed, and the proposals are now posted online for all to see.
Some of the most thoughtful suggestions, accompanied in many cases by convincing citation to legal authority, came from members of the Alliance of Business Immigration Lawyers (ABIL); members of the American Immigration Lawyers Association (AILA); a collection of 16 business-immigration stakeholder organizations (the 16); two individuals, attorney Nicole Kersey of Kersey Immigration Compliance (KIC), and Don Crocetti, managing member of Immigration Integrity Group, LLC (IIG) who formerly served as Chief of the Fraud Detection and Nationality Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS); the American Immigration Council (the Council); the Society for Human Resource Management through its strategic affiliate, the Council for Global Immigration (CFGI); the U.S. Chamber of Commerce (the Chamber); the International Medical Graduate Taskforce (IMGT); the Center for American Progress (CAP) and the Global Workers Justice Alliance (GWJA).
Here are just a few of the many recommendations (accessible through the hyperlinks in the preceding paragraph) which I believe would comprehensively transform and improve America’s decrepit immigration system:
Improve access to justice. ABIL, AILA and the Council urged the Department of State (DOS or State) and U.S. Customs & Border Protection (CBP) to grant every individual interviewed by a federal immigration official the right to the representation of an attorney (either in person or by electronic means, but still at no cost to the government). The right to counsel would extend to (a) visa applicants who are interviewed by a consular officer, (b) applicants seeking admission to the U.S. during secondary or deferred inspection who are interviewed by a CBP officer, and (c) petitioners seeking immigration benefits who are interviewed in the course of FDNS site visits by USCIS investigators. ABIL also urged State and DHS to create a pilot system of binding review of decisions by consular officers to refuse certain categories of visas (all immigrant visas and nonimmigrant refusals under the E-1 treaty trader, E-2 treaty investor, E-3 Australian specialty occupation worker, H-1B specialty occupation, L-1 intracompany transferee and O-1 extraordinary ability visa categories).
Develop a single body of “immigration common law” and revitalize the advisory opinion process. ABILproposed the creation of a single administrative tribunal to hear appeals from decisions and adjudications by all federal immigration agencies, thereby consolidating the work of multiple federal appellate panels and reducing the complexity and inconsistency of precedent and non-precedent immigration law decisions. ABIL also proposed that State publish all of its now-secret Advisory Opinions which guide consular officers in visa determinations and that USCIS adopt a published IRS-style private letter ruling process whereby the party seeking written guidance on the legal consequences of a particular set of facts would receive a binding interpretation but other stakeholders might benefit from the agency’s non-binding guidance in analogous circumstances.
Prohibit relitigating prior USCIS decisions granting employment-based immigration benefits. The 16, the Chamber, AILA and CFGI proposed that USCIS give “binding deference” to the agency’s previous grants of employment authorization whenever a petition seeking extension of the employer’s petition and of the worker’s nonimmigrant status involves the same employer, same employee, and same job duties, unless an adjudicator can establish, and articulate with specificity, fraud or clear gross error. Such a change would necessarily reduce the burdensome and frequent requests for additional evidence (RFEs) and introduce a welcome measure of reliability, consistency and predictability to the process of extending the work permission of nonimmigrant employees. To make this change, USCIS would need to adopt IIG’s proposal to speedily transition away from its “antiquated paper environment, supported primarily by legacy INS [Immigration and Naturalization Service] mainframe systems and databases with little to no interface or advance search or analytics capabilities” and instead it must “automate” “all USCIS systems and filing processes”.
Hasten the issuance of work visas, immigrant visas, green cards, work authorization and international travel permission. Many commenters (including ABIL, AILA, CFGI and the 16) proposed that State and USCIS adopt a range of proposals which, in various ways, would (a) count only the principal worker and not the dependents when reporting and applying the cutoff date on available immigrant visas as announced in State’s Visa Bulletin, (b) recapture the hundreds of thousands of immigrant visas from prior years that were unused and thus squandered because of inadequacies in the way green-card quotas were allocated between DOS and USCIS, (c) allow for much earlier acceptance of employment-based applications for adjustment of status, thereby hastening the issuance of Employment Authorization Documents (EADs) and Advance Parole travel authorization, and (d) plug gaps in the grant of employment authorization by extending it for longer periods or on an interim basis to more categories, e.g., persons in U visa status, applicants for renewal of EADs, and persons holding employment-based work-visa status in nonimmigrant categories omitted by the 240-day period of interim employment authorization allowed in the Form I-9 (Employment Eligibility Verification) regulations. GWJA also urged that USCIS, upon approving an immigrant visa petition, automatically forward the notice of appearance (Form G-28) to State’s National Visa Center so that prolonged delays now experienced in the recognition of attorney representation would be eliminated.
Clarify and liberalize the rules on immigration successorship in interest. ABIL proposed that DHS and DOS adopt a successor in interest principle that would (a) expand the range of situations in which corporate restructurings are recognized for immigration purposes, thereby allowing uninterrupted employment authorization and the preservation of pipeline employment-based immigrant visa and adjustment of status benefits, and (b) dispense with current USCIS interpretations whereby immigration successorship requires an “assumption of all or some liabilities, whether they be solely immigration-related liabilities or liabilities associated with the occupational classifications of the particular beneficiaries affected by the change in corporate circumstances.”
Adopt improvements to promote investment, entrepreneurship, job creation and business innovation. Many of the commenters suggested changes to spur investments, business activity, innovation and job creation. CFGI proposed the creation of a “Robust Trusted Employer Program” which would allow faster and more streamlined approvals of requests for immigration benefits submitted by “any employer that can demonstrate a track record of compliance with applicable [immigration] laws.” ABIL urged the Obama Administration to “create an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department.” AILA and ABIL proposed that DHS “create explicit immigration protections and benefits for small businesses,” e.g., by (a) rescinding the Neufeld Memorandum (which effectively abolished the distinction, long recognized in precedent decisions that, for immigration purposes, a corporation is to be considered distinct from its owners), (b) clarifying that the customary attributes of start-ups and small businesses are not necessarily indicia of fraud, and (c) adopting in formal policy guidance and ultimately in regulations the formal recognition that the characteristics of start-ups as set forth in USCIS’s Entrepreneur in Residence training materials are acceptable examples of legitimate forms of business operations and activities. ABIL and AILA also proposed numerous improvements that should be implemented by USCIS’s EB-5 Immigrant Investment Program Office (IPO) in order to promote the IPO’s announced goals of enhanced transparency of eligibility criteria, speedier case processing and the safeguarding of EB-5 program integrity.
Enhance immigrant and nonimmigrant protections and promote immigration integrity. A number of commenters suggested that DHS and DOS should ease eligibility requirements or offer enhanced benefits to individuals seeking or holding a particular visa status. IIG offered a range of suggestions to improve the lot of foreign medical graduates (FMGs) including, among other proposals, H-1B cap gap relief for FMGs, clarification that J-2 dependents of FMGs are not subject to the two-year, home-country, physical-presence requirement applicable to J-1 FMGs, and clearer and more expansive interpretations of (a) “affiliated or related” parties eligible for exemption from the annual H-1B quota, and (b) requirements for the physician national interest waiver. GWJA also suggested several improvements, including, for example, enhanced protections available to individuals who have applied for or hold U visa status, job “portability” benefits for H-2B workers, greater age-out protections for dependents in VAWA cases, and an obligation undertaken by DOS to provide more explicit statements of the actual grounds for a visa refusal and not merely uninformative citation to the general ineligibility ground of denial found at Immigration and Nationality Act (INA) § 214(b). CAP urged DHS and DOS to improve transparency and reporting of data on LGBT individuals who seek or hold refugee admission or asylum status. Don Crocetti of IIG suggested that USCIS automate immigration case processing and build “a person and organization centric data system complete with electronic filing and web-based interviews” — a system which “contains advanced and ‘Big Data’ analytics to support a proactive anti-fraud operation.”
Freeze I-9 and worksite enforcement until USCIS has decided all DACA/DAPA applications for work permission. Nicole Kersey of KIC, along with ABIL, proposed that the DHS Secretary cause U. S. Immigration and Customs Enforcement (ICE) to suspend and defer, on a temporary basis, worksite investigations and enforcement of certain employer-sanctions provisions of the Immigration Reform and Control Act (relating to the maintenance of Forms I-9 and the duty of employers to refrain from knowingly hiring or continuing to employ unauthorized workers). The temporary freeze would end, they proposed, once USCIS certifies that it has decided all applications for work permission under the DACA and DAPA program. The purpose of the proposed deferral of ICE enforcement, Ms. Kersey and ABIL explained, would be to avoid actions that might undermine the President’s goals of maintaining family unity in mixed-status households and encouraging eligible DACA and DAPA applicants to “get right with the law” and “come out of the shadow.” These laudable Presidential purposes, the proponents maintained, would be jeopardized if ICE — by virtue of a worksite enforcement action — were to impose a duty on employers to fire unauthorized workers who may ultimately receive employment permission.
Improve Federal Immigration IT Infrastructure. AILA suggested several IT enhancements, including USCIS acceptance of online payment of filing fees, standardization of web-published protocols and response times to email queries submitted to consular officers at posts worldwide, and permitting additional functionality in the “myUSCIS” Case Status Online query system by allowing access to the actual RFE or notices of intent to revoke or deny a petition issued rather than merely viewing a report that an RFE or notice has been issued (which must then await delivery by snail mail). In addition, ABIL and AILA suggested that — in the words of the AILA comment — “As USCIS continues to develop ELIS [the USCIS Electronic Immigration System] and expand its functionality to other forms and uses, it would be in the agency’s best interest to reach out to vendors and large-scale users, including AILA, for regular usability testing and feedback.” ABIL proposed a variety of additional IT suggestions:
DHS (USCIS and CBP) DOL (the Office of Foreign Labor Certification (OFLC)) and DOS (the Bureau of Consular Affairs [BCA]) should work to achieve interoperability for users so that employers, petitioners and applicants for immigration benefits, lawyers, law firms and organizational stakeholders such as universities need not be forced to re-enter the same data into disparate, siloed systems;All possible questions in online forms that function as a database, such as the BCA’s DS-160, where distinct questions appear as determined based on earlier answers to prior questions, should be published and available in full with a cross-referencing of questions and answers by visa category so that the public, as contemplated by the Paperwork Reduction Act, can know in advance what information to assemble.All electronic forms should provide the opportunity to expand on or clarify an answer to any question on the form in data fields permitting unlimited entry of text, since many questions cannot be answered truthfully and fully with, for example, a simple “yes” or “no” reply. Many such questions require the application of fact to law and thus require an answer that is consistent with applicable law. As currently configured, these forms invite a later accusation by federal immigration authorities of, inter alia, a willful, material misrepresentation under INA § 212(a)(6)(C), a falsely made document under INA § 274C(f), or a false statement under 18 U.S.C. § 1001;The attorney for an employer (with authorization of the subject individual employee or family member) should be allowed to access and download the electronic I-94. As the CBP e-I-94 system now is configured, only the applicant for admission who is ultimately admitted, or his or her attorney, can access the database and retrieve the I-94. Many large corporations centralize the management of their foreign employee’s maintenance of immigration status through counsel. Without access to the e-I-94 system by corporate counsel, this process is severely impeded and the prospect of an inadvertent violation of the unlawful-presence 3- and 10-year bars could occur; andOnline visa application[s] and [USCIS] immigration forms should allow the user to move from one screen to the next without completion of all relevant data requested in the screen. Often, some but not all information is not presently available. The online systems should also allow saving, downloading, and emailing partially completed forms so that information already provided need not be required to be re-entered again.
* * * Since other commenters’ proposals were not summarized, and additional comments of the submitters identified above may have been given unintentional short shrift, I encourage all immigration stakeholders to spend as much time as possible reading the full set of comments and then, using all forms of social and traditional media, to focus public attention on the innumerable ways that DHS, DOS and the several agencies that administer federal immigration laws can optimize our nation’s legal immigration system. It is broken; so let’s make the Administration fix it.
By Angelo A. Paparelli on December 30, 2014 Posted in IMMI Awards
With slightly less giddy anticipation than the annual fan frenzy evoked by the Academy Awards, the nation awaits another hotly competitive yearly awards ceremony. Yes, Nation of Immigrators, it’s time to announce the 2014 winners and losers in dysfunctional immigration law and policy who’ve earned the coveted (or disdained) IMMI Award. Some recipients are repeats from hitherto IMMI awards of 2010, 2011, 2012 and 2013; others will take home an IMMI for the first time. The rules are the same. The IMMIs are merely this outside-the-Beltway observer’s take on the year’s highs and lows in U.S. immigration, with help from some Cool Immigration Lawyers.
Evolver in Chief. Fighting off a strong challenge by Sean Hannity who demonstrated astonishing elasticity in opposing, then supporting, then again opposing lawful status for the undocumented and a path to citizenship, President Obama earned this IMMI for his yoga-like pliancy. As itemized in the screed of a complaint filed by multiple states, the President opined at least ten times before his grant to DREAMers in 2012 of deferred action, and work and travel permits, and nine times thereafter, that he lacked unilateral authority to address America’s dysfunctional immigration policies, that is, until he announced a series of Executive Actions (not Executive Orders) in the year’s penultimate month.
Mojo Master. Barack Obama takes home this IMMI as well for bringing roughly 5 million people out of the shadows and setting an immigration trap — apparent to all — into which fractious and blustering Republicans consciously stepped. By taking executive actions on immigration (as have numerous past Commanders in Chief ), the President caused Republicans to flail about searching for a way to stop the his executive actions, including impeachment, censure, withholding an invitation to give the State of the Union speech in the House chamber, prohibiting the expenditure of funds, threatening a government shutdown, and ultimately short-funding until February the budget for the Department of Homeland Security. None of these ploys have worked. The upshot is that the President’s popularity has seen a resurgence among Latinos.
Most Flawed Legal Advice. This IMMI is awarded to that former constitutional law professor now sitting in the Oval Office who must have read and taught the seminal case of Immigration and Naturalization Service v. Chadha (declaring unconstitutional as an impermissible legislative veto an immigration statute that allowed Congress to overturn a grant of an immigration benefit by the Executive Branch).At a December 9 public forum in Nashville, President Obama said (at 21:18 on the video):
Make sure that they understand they don’t have to hire a lawyer . . . in order to pay for this [requests for deferred action]. Because what we saw during DACA [Deferred Action for Childhood Arrivals] when the young people were given this opportunity, a lot of people signed up but sometimes you’d see advertisements you know, “Come and give us $1,000 or $2,000 and we’ll help you.” You don’t have to do that.
The President also may not have read but surely officials in the Departments of Homeland Security and Justice are aware of Padilla v. Kentucky, where Justice John Paul Stevens, writing the majority opinion, stated: ”Immigration law can be complex, and it is a legal specialty of its own.” While not all applicants seeking temporary reprieve under DACA or DAPA [Deferred Action for Parental Accountability] need a lawyer if their case is straightforward and they are assisted by an Accredited Representative approved by the Board of Immigration Appeals (certainly never a notario), numerous cases will require the advice of a competent immigration lawyer. I have a ready answer when prospective clients ask me, “Why do I need a lawyer to fill out immigration forms? I tell them that “I guess I could perform surgery on myself, but it is not advisable.” Another lawyer I know, when faced with the same question, says he’s done the following:
I used to pick up a copy of the [Immigration and Nationality Act] and pick out section 203(a) and hold out the pages “these are the ways to get green cards.” I then indicate section 212(a) and hold out the pages — “These are the ways you will not be allowed to obtain a green card.” And then, do the same with what is now [section] 237(a). “And these are the ways that once you have a green card, it can be taken away. . . .” “Any questions?”
To be sure, DACA and DAPA are not as complex as the myriad ways to assemble the right evidence to qualify for, obtain, maintain or lose permanent resident status. Still, the process is sufficiently complex and the consequence of failing to qualify significant (the individual is now on the government’s radar and is subject to removal). Thus, even for those seeking deferred action, the need for a lawyer (or merely the desire to hire a lawyer to facilitate the assembly of potential evidence of physical presence in the U.S.), is obvious. Hence, the President’s advice is simply incomplete and therefore wrong. Thus, for failing to make appropriate distinctions and caution that some cases may require legal counsel, President Obama deserves the opprobrium of this IMMI.
Profile in Poltroonery. In 2014, the winner of this IMMI offered an enlightened solution to illegal immigration:
Our national and economic security depend on requiring people who are living and working here illegally to come forward and get right with the law. There will be no special path to citizenship for individuals who broke our nation’s immigration laws – that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits).
The “get right with the law“ reference may have fooled you. This IMMI goes not to President Obama but to House Speaker John Boehner who included the foregoing in a set of “Republican Standards for Immigration Reform.” Prioritizing retention of his post over the welfare of the country, the Speaker emphatically refused to bring the Senate’s comprehensive immigration reform bill, S. 744, to a vote in the House, knowing full well that it would pass with bipartisan support, while failing to fulfill his promise that the House would pass a series of immigration bills.
Profile in Machiavellian Buffoonery. Rep. Steve King takes the IMMI for doubling down this year on his absurd, fact-free statement in 2013 about DREAMers that “[for] everyone who’s a valedictorian, there’s another 100 out there that weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.” While Rep. Jared Polis teased King about a recent trip to the U.S.-Mexico border where no unusual calves were on display, King’s over-the-top rhetoric is carefully calculated and a clear and present danger to the cause of immigration reform. Sadly, he is only one of many propagating myths about immigrants and immigration.
Lemmings over the Cliff. This IMMI goes to the sitting and defeated Senators who for naught urged the President to delay executive action on immigration until after the November election. To the surprise of few in the advocacy community, this “too clever by half” strategy nonetheless led to a GOP rout.
All about Love. Jeb Bush, the first 2016 candidate for the presidency, earned an IMMI for his recognition of the prime reason why the undocumented take the risk of dying in the desert. With Fox News in attendance, Mr. Bush commemorated the 25th anniversary of his dad’s presidency, offering these honest words:
The way I look at this is someone who comes to our country because they couldn’t come legally, they come to our country because their families — the dad who loved their children — was worried that their children didn’t have food on the table. And they wanted to make sure their family was intact, and they crossed the border because they had no other means to work to be able to provide for their family. Yes, they broke the law, but it’s not a felony. It’s an act of love. It’s an act of commitment to your family. I honestly think that that is a different kind of crime that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families.
Bordering on the Absurd and Heartless. U.S. Customs and Border Protection takes this double-faceted IMMI for its two-faced demeanor in 2014. One face promotes Jolly St. Nick who learns that only Global Entry will allow this North Pole alien to speed through immigration inspection. The other face reveals how CBP shakes down and abuses immigrants by relieving them of their meager possessions before removing them, while also subjecting them to coldly harsh conditions before their ouster.
Talk is Cheap. 2014 saw USCIS make ever greater strides in public engagement and in the EB-5 immigrant investor arena, while its earnest new Director has sounded all the right themes. Still, the agency wins this IMMI for its long and prolonged list of unfinished business on business immigration. The reasons for this IMMI are numerous: Ungovernable adjudicators still issue too many requests for additional evidence, highfalutin promises of expanded use of the National Interest Waiver for entrepreneurs never materialize, oft-stated assurances to publish a final rule on employment authorization for H-4 spouses and updated L-1B guidance remain unfulfilled, the agency’s de facto reliance in determining degree equivalency solely on the EDGE database despite a contrary claim to a Member of Congress, and the buggy and insufficiently tested ELIS program which can’t handle simple applications to change status and surely is unready for complex EB-5 filings.
No Bonding of Kids and Moms. It’s no surprise that U.S. Immigration and Customs Enforcement (ICE) is rated by the Partnership for Public Service in its 2014 Best Places to Work in the Federal Government® rankings as the second-worst place to work out of 315 sub-agencies. Ever the enforcers, ICE officers through their union have chafed over the Administration’s prosecutorial discretion and deferred action policies. Perhaps part of their angst originates with their duty to arrest and detain immigrant children and mothers apprehended at the border. The IMMI goes to ICE for its “no-bond” policy requiring the incarceration of refugee families fleeing unrest in their countries of origin, with special mention going to ICE officials Philip Miller and Traci Lembke for their affidavits that have been included as ICE’s centerpiece exhibits in opposing bond and release for ALL moms and children in family detention.
We Read Nothing. This IMMI goes to the State Department’s Bureau of Consular Affairs — an agency that places unreasonable mandates on consular officers to adjudicate far too many visa applications in too short a time frame. The upshot is that consulates, such as the busiest blanket L-1 post in Chennai, will no longer read substantive correspondence from companies seeking to hire tech workers and instead requires all the facts to come solely from the mouth of the visa applicant during the brief consular interview.
Best Manual on Surviving Secondary Inspection. The IMMI goes to the Central Intelligence Agency for its interesting and thorough “Surviving Secondary Screening at Airports While Maintaining Cover.” In words that might apply to ordinary people applying for admission at a U.S. port of entry, the CIA notes: “Secondary screening—a potentially lengthy and detailed look by airport officials at passengers not passing initial scrutiny—can significantly stress the identities of operational travelers.” The cover wins an IMMI for best government cover page as well. Check it out at p. 2.
(Mostly) Courtly Behavior. This IMMI goes to the Supreme Court (for its refusal to hear Arizona Governor Jan Brewer’s claims, and thus allowing the issuance of driver’s licenses to the state’s undocumented population), to Judge Juan Osuna, Director of EOIR, the Executive Office for Immigration Review (for urging immigration judges to deal compassionately with the flood of undocumented refugee families), and to Federal District Court Judge Beryl A. Howell for refusing to issue a preliminary injunction and finding that Sheriff Joe Arpaio lacks standing to complain of President Obama’s exercise of executive authority in the field of immigration. Sadly, however, the IMMI is tarnished by another federal judge, Arthur J. Schwab, who went out of his way in a criminal case to rule as unconstitutional the civil immigration remedies announced by the President, while inexplicably suggesting that a criminal defendant who pled guilty to illegal reentry after removal may withdraw his plea and pursue the Administration’s executive actions. The IMMI is also tainted by the non-transparency of EOIR in refusing a Freedom of Information Act request by the American Immigration Lawyers Association (AILA) seeking to identify immigration judges against whom 767 complaints have been lodged and declining to reveal the resolution of these complaints.
A Credit to the Profession. Multiple IMMIs go to the 330+ lawyers and three bar groups for their selfless pro bono efforts in 2014. Many helped the flood of unaccompanied children (including some citizens) fleeing oppression and crossing into the U.S. from Mexico. These awardees include Stephen Manning, Laura Lichter, volunteer attorneys who represented kids at the Artesia, New Mexico detention center; AILA and the American Bar Association for resolutely supporting the cause; the Bronx Defenders and their New York Immigrant Family Unity Project, the first institutionally-provided, free public defender program in the country for immigrants facing deportation; attorneys such as immigration author and editor Dan Kowalski (who alerted the American people to ICE’s no-bond policy), my Seyfarth Shaw colleague, Loren Locke who won the GAIN (Georgia Asylum and Immigration Network) pro bono volunteer attorney of the year award, and Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington (who worked on cutting-edge issues and cases, warned the community and country of notario fraud and helped promote a change in state law that expanded the class of Special Immigrant Juveniles); as well as so many other worthy lawyers too numerous to mention.
In-Their-Face Activists. Again, a slew of IMMIs go out to individuals and groups who pushed the boundaries of traditional movement politics and refused to allow the President and members of Congress to ignore the need for compassionate immigration relief, including Jose Antonio Vargas, Erika Andiola, Prerna Lal, the National Day Laborer Organizer Network (and their #NotOneMoreDeportation campaign), to name but a few.
Chroniclers, Filmmakers, Quantifiers, Litigators and Proponents. Still more IMMIs go to those who made a difference in asserting the case for comprehensive immigration reform. They include: J.M. Rieger for his powerful video, ”Stalemate: How an Immigration Rewrite Died in the 113th Congress“; the Weather Channel for its searing documentary, “The Real Death Valley“; Jose Antonio Vargas for his autobiographical documentary, “Documented“; the Pew Charitable Trusts, NAFSA: Association of International Educators and TRAC Immigration for their compelling sets of immigration metrics, including, e.g., respectively, “Immigrants slow population decline in many counties,” “The International Student Economic Value Tool,” and ”Prosecutor Discretion: Immigration Court Cases Closed Based on Prosecutorial Discretion“; the American Immigration Council’s Immigration Policy Center and its powerful blog, “Immigration Impact” and AIC’s Legal Action Center for its frequent resort to the courts, most recently in defense of the President’s executive actions; Cato Institute’s Alex Nowrasteh for his prolific and persuasive writings espousing increased legal immigration; venture capitalist Paul Graham for his exuberant call for dramatically greater importation of tech workers; and the American people who consistently support comprehensive immigration reform and a path to citizenship for the undocumented.
Best Immigration Quiz. Two lawyers are awarded IMMIs for great brainteasers, Donna Becker for her U.S. Nonimmigrant Quiz, and Liam Schwartz for his Consular Corner Quiz. I venture that few of the Nation of Immigrators will score 100% on each.
Jokesters and Satirists. Lastly, a trio of cable denizens win IMMI’s because they brought us laughter’s tears over the sorry state of immigration in 2014: Stephen Colbert (“Bats**t Serious – Child Immigrant Intrigue,” ”Waiting Forever for Immigration Reform,” ”Obama’s Immigration Plan – Esteban Colberto,” and “Questionable Compassion for Child Immigrants“), Jon Stewart (“No Country for Little Kids“ and “Guardian of the Amnesty“) and John Oliver (“John Oliver Takes on Our Broken Immigration System“).
* * * Well, that’s it for this year’s IMMIs. The Nation of Immigrators must wait till December 2015 for the next annual IMMI Awards. Meantime, Tweet me your nominees as you witness them
Immigration Voices: “Gambling on Immigration at a Dangerous Intersection (Merry Christmas, Ninja Squirrel!)”
[Blogger's Note: Today we have a dandy guest post from the ever insightful, prolific and droll, Nici Kersey. Don't be put off by her introductory paragraphs. There's an immigration gem awaiting -- one that employers, and the lawyers who counsel them, will not want to miss.]
Gambling on Immigration at a Dangerous Intersection(Merry Christmas, Ninja Squirrel!)
By Nicole (Nici) Kersey
I run several days a week on the Air Force base where I’ve lived for the past 18 months. I prefer to run on River Road, which has a river on one side and a golf course on the other and which leads from my house to a prison. (Apparently, prisons and military bases are frequently co-located, perhaps in part because of the need for cheap labor to take care of golf courses, which are also frequently located on Air Force bases.) Here are some things I have learned on these runs:
People will try to hit you with golf balls. They will find this funny. They are probably drunk and are unlikely to hit you, but it will be unnerving, and you will learn to avoid the golf course area during the drunkest hours.Signs warning you about alligators will, at first, cause you to run your fastest miles in years. Over time, you will begin to slow, hoping to actually see some evidence that alligators once inhabited the earth. You will see a snake one day, and that is as exciting as your wildlife encounters will be.Until the day you see a meerkat, which you will chase and photograph. But then you will figure out that it was just an Eastern Fox squirrel, which is basically a larger-than-normal squirrel wearing a ninja mask.The inmates will, at first, have an effect similar to the alligator signs, causing you to run faster and carry mace. Over time, you will realize that they have little interest in you, and they are prohibited from even speaking to you. You will eventually just wave hello to the prisoners and start to concoct wild plans for how you can help them escape from jail.Two things that you will never get used to: running behind an active firing range. (This will always make you run very, very fast.) Ditto: running under a C-130 that is landing. You will manage to be within 20 yards of the end of the runway at least twice, and both times, you will nearly soil yourself.Every now and then, your normal running trail will be closed due to “explosive dog training.” Causing you to wonder how, exactly, one trains a dog to explode and, if you succeed, why you even bothered with the training.
Okay, okay. I’m supposed to write about immigration, right? Here goes: when I run 4 or
more miles, I come to an intersection that used to cause anxiety: turn left, you enter the federal prison; turn right, and signs warn you of alligators; turn around, and you have to run back through the golf course where the drunk people tried to hit you with balls.
Employers who are trying to decide whether to conduct a voluntary I-9 audit today face a similar intersection. Turn left, they risk entering the federal prison in a way more “official” way; turn right, and they may lose valuable employees who are eligible for work authorization which simply hasn’t been granted yet. (In this metaphor, the employees are getting gobbled up by the alligators. Get it?)
Previously, employers deciding whether to undergo an audit needed to consider several factors. Among them: the cost of the audit, the risk that would be eliminated by the audit, whether the employer could take the time to correct violations discovered, and whether the business could survive the loss of any employees determined to lack employment authorization. The new executive order adds a twist. A number of employees who do not hold work authorization today may obtain employment authorization within the next 12-24 months. This raises the question of whether now is the right time to conduct an audit.
If an employer discovers today that Bob presented fake documents when he was hired, and the employer confronts Bob, and Bob admits that his documents were fake and that he is not authorized to work, the employer must terminate Bob’s employment. If Bob says he is not work-authorized today, but he is eligible for DAPA under the new executive order, the employer still must terminate Bob’s employment, even though – if the employer had waited a year to conduct the audit and confront Bob – Bob’s fate could have been much different.
So the question becomes whether employers would be wise – or kind – to wait until the new batch of DACA/DAPA beneficiaries have obtained employment authorization prior to conducting a voluntary audit.
If the employer waits a year or so, it can clean up its I-9s without the loss of as many valuable employees. But if the employer waits a year or so and is, in the interim, inspected by ICE, the employer may face hefty fines and – in the most egregious situations – a prison sentence.
And it has become abundantly clear that ICE is not “chilling out” until the new batch of DACA and DAPA employment authorization cards are issued. (ICE isn’t even chilling for the holidays, having issued Notices of Inspection this week.) Who is most likely to be inspected? Employers in “critical infrastructure” are high on ICE’s priority list. It also seems that employers who were previously inspected and issued a Warning Notice are high on the list, as are employers referred to ICE after an investigation by another agency (DOL, OSC, USCIS). And those employers who are suspected of hiring unauthorized workers – knowingly or unknowingly – are at high risk of an inspection. Employers at higher risk of inspections may not be wise to gamble by waiting to conduct an audit.
Employers may also consider geography in assessing their vulnerability. Those in California are less likely to be fined for I-9 violations than those in Illinois (see page 7).
Wait a second … this was supposed to be a holiday-themed blog post? Yikes. Okay. So, one day I was running on River Road and listening to Vampire Weekend (for the purposes of this post, we are going to say that the song was “Holiday”) when an unidentifiable liquid dropped from a tree directly into my eye. I became convinced that a squirrel peed in my eye. The best thing to do when you think a squirrel has peed in your eye is ask your Facebook friends for advice. They will call you Chicken Little, and your eye will be fine. And if you still don’t feel like this post was holiday-y enough, here’s a gift: an annotated Form I-9 to help keep you out of trouble. Merry Christmas!
 “Critical infrastructure” is defined by ICE to include Agriculture/Food, Banking/Finance, Chemical, Commercial Facilities, Communications, Critical Manufacturing, Dams, Defense Industrial Base, Emergency Services, Energy, Government Facilities, Healthcare/Public Health, Information Technology, National Monuments/Icons, Nuclear Reactors, Materials/Waste, Postal/Shipping, Transportation Systems, and Water.
 But some employers in California are considering conducting self audits on an expedited basis so that they can terminate employees who lied at the time of hire about their employment authorization. (Such terminations based on dishonesty may not be allowed if the employees have gained employment authorization under a law that took effect early this year.)
Updated 12-22-2014 at 04:33 PM by APaparelli
[Blogger's note; Probably the most gratifying element of practicing immigration law is watching clients flourish. Obtaining immigration benefits, especially lawful permanent residency, often unleashes a wave of innovation and creativity. Less often, it produces a humanitarian "pay it forward" moment. This is the story of today's guest blogger, Protima Pandey. Many years ago, I represented a technology company that asked me to help Protima's husband obtain an H-1B visa and a green card, and obtain H-4 dependent visa status and lawful permanent residence for her as well. Unbeknownst to me, she had chosen law as a career, and with the work permit that pending green card status afforded, she began a stint as a lawyer in private practice. Soon after obtaining residency, she followed her dream and became a public interest immigration lawyer. Today, she is a Staff Attorney with Bay Area Legal Aid, helping the impoverished, abused and desperate obtain redress and immigration benefits. Protima is helping "pay it forward" by telling us the story of "Tanya" and "Rose," whose names are changed to honor their privacy. Protima's is only one of example of how the forthcoming final rule on H-4 spousal employment authorization will benefit America. I am pleased to report, moreover, that Protima is very happy in her work; you could be happy too.]
Out of the Shadows — U Nonimmigrant Visa Status:
Creating Safer Communities and Bringing Justice for All
By Protima Pandey
When Tanya found out that her daughter Rose was being sexually assaulted by her father, Mauricio, Tanya’s world collapsed. All these years Tanya looked at Rose’s mood swings, flashes of anger and refusal to go to school as behavior typical of pre-teen and adolescent girls. But after Rose revealed what her father was doing to her for 7 years in a row, Tanya went numb. Even more distressing was the fact that her father told Rose categorically and continuously that she would be punished if she ever told anyone about what was happening.
On the day that Tanya learned of this, she called Mauricio at work and told him to come home immediately. She then gathered her other two children, and gently prodded them about their life with their father. Relieved not to hear them repeat the stories that Rose told her, Tanya waited for Mauricio to return. He never came. Instead, she received a call from a relative overseas that Mauricio had returned home saying Tanya was unfaithful and that he left her.
Why is this story relevant on a blog that talks about immigrants and the law? Because this is a story of a family that lived “under the shadow,” to quote President Obama, for years, trying to make a life in America. Because this is the story of a family that had a deep, dark and dirty secret, one which included believing that the laws in this country do not apply to those who are undocumented. Because this is a story of a family that the United States of America decided should not be allowed to suffer in silence while they were being victimized by a crime punishable under the laws of this country.
U nonimmigrant status (popularly known as the U visa) was created by the Victims of Trafficking and Violence Prevention Act, enacted in October 2000. The law addresses the plight of aliens who have been exploited, victimized, and abused, but do not have legal status in the U.S., and therefore may be reluctant for fear of removal to help in the investigation or prosecution of criminal activity. The existence of U status provides law enforcement officials a means to help support the legalization of immigration status of undocumented crime victims who assist during investigations or prosecutions of criminal activity. U status provides temporary immigration benefits to certain victims of crimes who assist law enforcement officials in investigating and prosecuting those crimes.
In passing this legislation, Congress intended to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of persons, and other criminal activity of which undocumented people are victims, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. The maximum number of U status applications that can be approved in any one year is 10,000 for principal petitioners.
Tanya’s story is one of several thousands of victims and families who live in silence and suffer indignities that are crimes in the U.S. all because they feel their lives are not counted the same way as are documented people’s lives. By December 2013, USCIS has granted close to 50,000 U visas to victims of qualifying crimes such as Tanya. The most important aspect of this relief is that the goal of the visa is to permit those who qualify to live temporarily in the U.S. with U status.
However, the reality in the lives of the Tanyas in our country is that they often do not know that such relief exists or that they could qualify for this relief. Victims rarely reach out to law enforcement because they fear that their status somehow makes them ineligible for help — a common misunderstanding among undocumented. A report released in 2013 cited by the website Think Progress stated that among the Latinos surveyed (4,000 according to this report), Seventy per cent of the undocumented surveyed said they would not call the police to report being a victim of crime or a witness to a crime. Anecdotal evidence from colleagues and my own clients confirms this practice. If the crime victim speaks a language other than English, there is added fear that s/he will not get help if they dial 911. It is therefore important for law enforcement and community-based agencies alike to create mechanisms for outreach, assistance and referrals for crime victims who could qualify for these protections.
Tanya called the police to report the crimes that Rose had suffered. Especially since Tanya knew Mauricio had run away, she knew that at this time she had to take a step forward to protect not just Rose, but all her children. The police referred her to Bay Area Legal Aid for legal assistance, where I am a staff attorney. Tanya was low income (below 125% Federal Poverty Guidelines) and qualified for free legal assistance as a victim of crime.
Among other requirements, an applicant for U status, apart from being a victim of an eligible crime and cooperating in the investigation of that crime, s/he must ask a law enforcement agency or official to complete a certification form confirming that the applicant “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the criminal activity.” The issuance of this certification is a critical step that has to be completed before the applicant can file for relief under this special category of non-immigrant status. USCIS offers a guide to practitioners and certifying agencies which contains valuable guidance on the process of obtaining certification. According to the guide the certifying agency can be:
Federal, State and local law
enforcement agencies;prosecutor’s offices;judges;family protective services;Equal Employment Opportunity commission;Federal and State Department of Labor; andOther investigative agencies.
Community-based agencies can liaise with local agencies that investigate, prosecute qualifying crimes to determine if there is a certification process available. Some agencies, such as the California Dept. of Fair Employment and Housing post their certification process, while others require attorneys or petitioners to inquire with of staff regarding certification procedures.
Another aspect of this form of relief is that a petitioner who qualifies for a U visa can also petition for derivative family members. For petitioners who are 21 and older, this means minor children and/or non-abusive spouses. For petitioners who are 21 or younger this means minor children, a non-abusive spouse, siblings under the age of 18, and parents.
We obtained certification for Tanya as a victim of a qualifying crime because it was her care, love and encouragement that allowed Rose to report the heinous crimes she had been suffering and because as a parent of a victim, Tanya is considered an indirect victim of the crime. Tanya helped law enforcement track Mauricio down in his home country and extradite him. Because Tanya was able to obtain certification as a victim of a qualifying crime, our office filed for U status relief for her, and her children were included on the application as derivative family members.
Since our office represents victims with several different legal issues, Tanya asked us to assist her in obtaining a divorce and sole custody of all her children. Working with local law enforcement, we were able to serve the summons and complaint for divorce on Mauricio and obtain a divorce decree with sole legal and sole physical custody of the children awarded to Tanya. We also informed Tanya that her family could qualify for healthcare so that her family could get assistance with therapy and rehabilitation for their trauma.
Once Tanya and her children were granted status, they were all issued Employment Authorization Documents (EADs), a benefit conferred by the regulations that govern this type of relief. Because Mauricio no longer lived with the family and could not support them because he had been deported shortly after sentencing, Tanya carried all the burden of financially supporting her children. With the EAD card, she found stable employment, was able to enroll her oldest child in community college for apprenticeship (she feared he would not be able to do much after high school since she worried that colleges might require “papers” that document the immigration status of applicants before admissions) and has encouraged her two younger children to work hard in school so they can have a future for themselves.
Tanya’s story won’t end here. The visa she and her family have is good for four years. After three years of living in the U.S. and maintaining their U status, Tanya and her children can qualify to adjust their status to that of a lawful permanent residents (LPR). A holder of U status like Tanya will have to file for adjustment showing that s/he has remained in the U.S. and has not unreasonably refused to cooperate with law enforcement in the investigation of the qualifying crime that made her/him eligible for this relief in the first place. The application to adjust status must contain documentation proving continuous presence.
In the case of Tanya, it could be in the form of tax returns for the three qualifying years, school records to show the children maintained residency and any other documents with her name and address like pay stubs, utility bills and other mail. Tanya and her children must show USCIS that approval is warranted by requesting exercise of favorable discretion on humanitarian grounds, including the need to keep the family together. Any additional information, like the therapy that Tanya, Rose and the other children in the family are receiving to recover from the trauma they suffered because of this crime, any long standing community relationships that the family has built which serves as their support system and any activities that demonstrates participation in their local community as part of daily life like church or voluntary service are all relevant pieces of evidence that will help USCIS grant LPR status to Tanya and her children.
With the law in place for undocumented crime victims to receive relief, the key issue remains outreach and assistance to the families and beneficiaries of this relief. Community-based agencies and legal aid agencies work in tandem with law enforcement and domestic violence services agencies to connect those who qualify for this help with those of us who can help them. In Tanya’s case the pieces fell together for her to free her child from the years of victimization. However, there remain many barriers that prevent other families and individuals from being helped.
One major barrier is the lack of adequate legal assistance to reach all those who qualify for help. The Legal Services Corporation in its 2012 Pro Bono Task force report found that almost 50% of the population that needs legal assistance is unable to get help because the current legal services agencies lack resources to assist all who qualify.
Studies show that the service provided to victims of crime contributes to public safety enhancement helps children and families and allows for victims of crime to receive protections under the law. The availability of legal services for victims has likewise been shown to significantly reduce the likelihood that an individual woman is battered. Moreover, statistics from the Board of Immigration Appeals show that about 41% of litigants lack legal representation.
Studies show that the service provided to victims of crime contributes to public safety enhancement helps children and families and allows for victims of crime to receive protections under the law. The availability of legal services for victims has likewise been shown to significantly reduce the likelihood that an individual woman is battered. Moreover, statistics from the Board of Immigration Appeals show that about 41% of litigants lack legal representation.
If you are an individual who can give to low income, unserved communities, if you speak a language other than English, if you are a lawyer who has spare time to help (Bay Area Legal Aid always welcomes pro bono volunteers), if you are looking for a resolution to make as you enter the New Year, this is your chance to consider a worthy cause, a deserving population and a satisfying deed. As a career legal aid lawyer, I am an advocate at heart, so I am reaching out to ask for help for families who are silently suffering, who can get help and who can turn around their life. The happiest moments of my job are when clients show appreciation for our work, show us results like a job or a school admission because they were able to break free from the cycle of oppression or violence or when they say their last resort, us, turned out to be the one they should have come to in the first place.
 It was later amended by the Violence Against Women Act, 2005, the Trafficking Victims Protection Reauthorization Act, 2008 and the Violence Against Women Act, 2013.
 See generally: http://www.uscis.gov/humanitarian/vi...migrant-status . Also see, Bay Area Legal Aid: Immigration Relief for Victims of Domestic Violence, Sexual Assault and Other Serious Crimes: U Visa, VAWA & I-751 Waivers MANUAL (January 2011). Page 10-11.
 See Generally Sally Konoshita, et all, The U visa: Obtaining Status for Immigrant victims of crime, Immigration Legal Resource Center, 4th Ed., 2014, 1-1.
 There are many qualifying crimes covered by this relief, this post uses sexual assault as an example to illustrate the benefit. See for example http://www.sfweekly.com/sanfrancisco...nt?oid=2180863
 http://thinkprogress.org/immigration...report-crimes/ See also http://newamericamedia.org/2014/05/n...the-police.php
 Find out more about Bay Area Legal Aid as well as how to volunteer as a pro bono attorney or donate to our work at www.baylegal.org. Assistance and information are also available from the Office of the USCIS Ombudsman. The Ombudsman, Maria Odom, serves as Chair of the Department of Homeland Security’s Blue Campaign, a unified effort to combat human trafficking. In collaboration with law enforcement, government, and non-governmental partners, the Blue Campaign works to educate the public about how traffickers operate, where help is available to victims, and the importance of a victim-centered approach to combating human trafficking.
 See Generally INA § 101(a)(15)(U); INA § 214(p) and regulations found at 8 CFR §§ 212.17, 214.14 . See also In re Petitioner (name redacted), No. EAC 09 080 50515, 2010 WL 4088659 (Administrative Appeals Unit, March 3, 2010) for specifics on evidence of the direct and immediate harm that the petitioner has suffered as a result of the qualifying crime.
 The certification must be obtained on the I-918B form that the practitioner or petitioner must complete and send to the certifying agency. It is always best practice to approach the agency and determine their preferences for issuing a certification, including what additional documentation they might require to be able to certify favorably. Keep in mind however that you should only disclose information that your client has issued a release for, in order to ensure you are not violating any attorney-client privilege.
 INA § 101 (a)(15)(U)(ii).
 Tanya and her children entered the U.S. without inspection and therefore had to submit an additional request to the USCIS to seek relief and pardon for having entered without papers using the form I-192. Being low income, USCIS approved the family for a fee waiver of any filing fee associated with this waiver; there is no fee for the U visa application or fingerprinting.
 8 C.F.R. § 274a.12 (a)(19-20). The principle applicant does not have to submit a separate request for the employment authorization but the derivatives can submit I-765 for this concurrently with their U derivative petitions.
 8 CFR § 245.24
 8 CFR § 245.24 (10)
 See also 8 CFR § 245.24 (11) which contains information on how to address adverse factors, if any, that may prevent favorable discretion, including pleading extreme hardship and exceptional circumstances.
Updated 12-16-2014 at 01:08 PM by APaparelli
Worksite Harmony and the President’s Executive Actions: It’s All about Immigration Timing
“Politics at bottom is not all that complicated. It’s all about timing.”
Facing a recalcitrant House of Representatives controlled by Republicans, President Obama made an historic announcement on November 20th outlining an array of executive actions he would take to fix as much as he could of our broken immigration system.
Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees. But this won’t happen for up to six months.
Meantime, a dispute has arisen among Republicans about whether Congress has the power to prohibit USCIS from processing deferred action cases by starving the agency of funds. The House Appropriations Committee maintained in a statement that the Congress is powerless to prevent USCIS from financing the cost of implementing the deferred action program and according benefits through user fees:
The primary agency for implementing the President’s new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the ‘E-Verify’ program. Therefore, the Appropriations process cannot be used to ‘de-fund’ the agency. The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.
Senator Jeff Sessions (R-AL) disagrees and is reportedly brandishing a Congressional Research Service (CRS) opinion letter described, but not released, by the far right blog, Breitbart, which suggests that Congress can bar appropriated funds, including user fees, from being deployed in a way that contravenes a statute. The actual CRS report, available here, provides:
A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds. (Footnote omitted; emphasis added.)
The CRS report did not mention, however, that the Immigration and Nationality Act (INA) already contains “a permanent appropriation in an authorizing act,” INA § 286(m), 8 U.S. Code § 1356(m), which states in relevant part:
Immigration examinations fee account.–Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: Provided, however, . . . That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected. (Emphasis added.)
According to a former senior Executive Branch official who helped me confirm the government’s interpretation of INA § 286(m), this provision has historically been construed as a “permanent, indefinite appropriation” of funds for USCIS to operate its adjudication functions through user fees. This is confirmed by the White House and USCIS in guidance offered during the 2013 government shutdown. The requirement in INA § 286(m) that “adjudication fees” be designated “in regulations” by the Attorney General (now USCIS, since the passage of the Homeland Security Act) is satisfied by regulations found at 8 CFR § 103.7 (b)(1)(i)(C)(Biometric Fee of $85), 8 CFR § 103.7 (b)(1)(M)(3)(Application for Advance Parole [international travel permission] fee of $360), 8 CFR § 103.7 (b)(1)(HH)(Application for an Employment Authorization Document fee of $380), and 8 CFR §274a.12(c)(14) (allowing issuance of an Employment Authorization Document to persons granted deferred action).
So as USCIS readies itself to accept a flood of new applications for deferred action, and work and travel permits, the agency has already announced that the affected class would not be allowed to file their applications until later in 2015, and must wait even longer before final action is taken:
Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it. (Emphasis added.)
Another executive action approved by the White House — one that can be implemented relatively quickly — is the formation of an “Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.” Headed by the Labor Department, the group will include the National Labor Relations Board, the Equal Employment Opportunity Commission and the Departments of Justice and Homeland Security. Presumably, the Justice Department’s role will be filled by the Office of Special Counsel for Unfair Immigration Related Employment Practices, and Homeland Security’s participation will likely be led by U.S. Immigration and Customs Enforcement and its unit, Homeland Security Investigations.
Unlike the newly-announced but slow-to-arrive immigration benefits for the undocumented, the working group can conceivably be up and running and start enforcing immigration and employment law sanctions at America’s worksites as quickly as the ink is dry on any updates to cross-memoranda of understanding (MOUs) between and among the group’s members, such as the December 7, 2011 Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites and the MOU between DOJ and the NLRB.
There’s an obvious problem, however, with the slow grant of work permits to the undocumented and the much quicker enforcement of worksite violations. The President did not announce a deferral of enforcement of the Immigration Reform and Control Act of 1986 — the Reagan era law and later amendments which sanction businesses that employ workers whom the employer knows lack employment authorization (IRCA’s § 101) or who commit unlawful acts of immigration-related discrimination (IRCA’s § 102). It did not even issue a memo similar to the agency guidance offered in 2001 which gave employers a hint of modest relief when sponsoring undocumented workers for labor certification to gain “245(i)” benefits under the LIFE Act. Thus, employers are still at risk if they become aware that any undocumented workers are planning to apply, or have applied, for benefits under the new executive actions on immigration.
Imagine the scene at the company lunchroom. A group of obviously jovial workers are huddled together at a table filling out USCIS applications for benefits under the DACA (Deferred Action for Childhood Arrivals) or DAPA (Deferred Action for Parental Accountability) program. Bert Busybody, the director of HR, walks by and asks them why they are so gleeful. In unison, they reply, “because President Obama is allowing us to work legally.” Arguably, these workers must now be terminated from employment since Bert, as a supervisory representative of the employer, seems to have actual knowledge of the workers’ unauthorized status.
This type of worksite disharmony can be avoided if USCIS and the Homeland Security Department take appropriate action right away. As my colleague, Tony Weigel, has suggested to me, the Secretary of Homeland Security, Jeh Johnson, has authority to resolve this dilemma and allow interim employment authorization while USCIS adjudicates applications for deferred action and three-year work permits. The Secretary could merely hold that the issuance by USCIS of a receipt for a non-frivolous (meaning “patently without substance”) request for deferred action and work permission would constitute an interim document of employment authorization (say, with only six months’ validity) and a List C document for I-9 purposes under the following regulation:
8 C.F.R. § 274a.12(a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs . . . (a)(10)-(a)(15) . . . of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States. . . . .
8 C.F.R. § 274a.12(a)(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive.
There is abundant precedent for such a flexible approach in situations where the government is not in a position to grant work authorization quickly. For example, because USCIS cannot speedily confer new grants of employment authorization to certain beneficiaries, e.g., holders of Temporary Protected Status (whose work permits are extended merely by publication of a notice in the Federal Register [see Form M-274, "Handbook for Employers," pp. 13-14]), and conditional permanent residents who are allowed to work based on issuance of a receipt while awaiting an adjudication of a petition requesting the removal of conditions on residence under the marriage-based green card provisions or the EB-5 immigrant investor category.
If this flexible solution is adopted, the only remaining problem is the gap period from now until the date when USCIS is ready to allow filing of new immigration-benefits requests by the undocumented who believe they qualify under President Obama’s executive actions. The solution can be found in an embrace of the President’s sentiments espoused on November 20th:
Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger — we were strangers once, too. My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too.
Thus, under the same abundant legal authority for prosecutorial discretion that the White House Office of Legal Counsel and a bevy of legal scholars confirmed, the Secretary of Homeland Security should announce a temporary, six-month deferral of enforcement of employer sanctions arising under IRCA § 101 (INA § 274A; 8 U.S. Code § 1324a) – the provision punishing I-9 paperwork violations and the employment of persons whom the employer knows lack work permission — with exceptions for human traffickers and felonious harborers under INA § 274 (8 U.S. Code § 1324a) .
Having spoken so eloquently about “the determination of immigrant fathers [and presumably, mothers] who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids,” the President should take the next step and offer real-world, flexible solutions to IRCA-induced workplace disharmony, measures that would avoid financially endangering families by government-mandated terminations of employment as they prepare to “come out of the shadows and get right with the law.”
Updated 12-04-2014 at 02:00 PM by APaparelli