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The purpose of the [Immigration and Nationality Act is] to prevent an influx of aliens which the economy of individual localities [cannot] absorb. . . . Entrepreneurs do not compete as skilled laborers. The activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist.
Konishi V. Immigration and Naturalization Service, 661 F.2d 818 (9CA, 1981)(citations and quote marks omitted)
Immigration Entrepreneurship is all the rage. Comprehensive immigration reformers on the left and right agree that entrepreneurs beget innovation which begets jobs for Americans. Our history proves it. Research studies support the link. Foreign entrepreneurs are encouraged to come through the "front door." The President wants to welcome more of them. Members of Congress, hoping to avoid stemming the tide of innovation, are proposing a new flow of workers, especially in the STEM fields of Science, Technology, Engineering and Math with a three's-the-charm bill, the Startup Act 3.0.
In addition, a shoeleather-avoidant "Virtual March for Immigration Reform," dubbed the "March for Innovation," is set for a day this spring in order "to ensure that the broad immigration bills being considered in Congress include provisions to boost innovation and entrepreneurship, and . . . to seize the moment and get immigration reform passed."
While we obsess on the need to invite more immigrant entrepreneurs, why is there no comparable fixation on the importance of welcoming entrepreneurship's kissing cousin, creativity?
We acknowledge the creativity of knowledge workers, yet we fail to see the urgency of freely inviting members of the creative classes, our free-lance artists, writers, journalists, poets, painters, inspirational speakers, filmmakers, bloggers, videographers, performing artists, multi-media stylists and other creativity entrepreneurs. As the artist, Konishi, convinced the court, the "activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist."
Regrettably for America, however, our immigration laws are just as broken and dysfunctional when applied to creatives as to entrepreneurs. Foreign artists, even if they possess "extraordinary ability," or manifest their artistry in "culturally unique" ways, must still be tied to an established U.S. agent or an employer. They must also present a "consultation" from a peer group (usually a labor union that extorts a protectionist fee to confirm for the benefit of Homeland Security that its guild members' would accept the foreign artist into the fold on payment of union dues). Similar restrictions apply to media free-lancers who must present journalistic credentials and a contract with a U.S. company even if they propose to enter the U.S. to offer or produce creatively presented information or education.
Surprisingly, although we recognize the compelling need to eliminate immigration barriers for noncitizen entrepreneurs, we ignore the job-creating qualities of foreign artists, even though both groups share Steve Jobs' remarkable insight into the creative process -- one that likewise motivates many immigrants to embark for America:
If you want to live your life in a creative way, as an artist, you have to not look back too much. You have to be willing to take whatever you’ve done and whoever you were and throw them away. The more the outside world tries to reinforce an image of you, the harder it is to continue to be an artist, which is why a lot of times, artists have to say, “Bye. I have to go. I’m going crazy and I’m getting out of here.”
Artists and creatives are everywhere, yet America mostly spurns them. Our legislators and the Obama Administration, just like the commissars of the old Soviet Union, must ultimately wake up to the reality that the Federales have no special talent for picking winners, and that planned economies, more often than not, tend to overlook the budding artist and the possibly math-phobic virtuoso.
Let us also therefore revise our immigration laws to welcome these promising, early-stage artistic strangers even before they find an audience. With fair and open-hearted screening processes we surely can craft a way to identify creatives offering the potential to spawn new art forms, new industries and new jobs.
Updated 07-16-2013 at 03:26 PM by APaparelli
The New I-9:
Why Now When We Need Immigration Amnesty for Employers?
By Nicole Kersey and Angelo Paparelli
Irony was plentiful last week in Washington and around the country.
One particularly hawkish Republican, Senate Minority Leader Mitch McConnell (who never met a war-on-terror strategy he disliked), glommed onto Senator Rand Paul's filibustery droning against drones in protest of John Brennan's nomination as new CIA director.
Also last week President Obama met with religious leaders to promote "Commonsense [sic] Immigration Reform" as the "leaders expressed their concerns over the impact the broken immigration system is having on families throughout their congregations" -- especially the ongoing deportation of persons eligible for legalization under comprehensive immigration reform (CIR).
At about the same time, Jeb Bush, former Florida governor, out touting his new book Immigration Wars: Forging an American Solution, "aimed at conservatives who might have a hard time embracing the increasingly important path-to-citizenship," is accused of flip-flopping on immigration.
Last week also witnessed the release of two noteworthy publications on immigration.
One, a long read in the National Journal exploring immigration-law dysfunction and irony in the restaurant industry, asked the rhetorically ironic question: “When did business owners become the bad guys of the Republican Party?” The article does a good job of describing our ironic process for verifying employment eligibility:
Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)
The other piece is a Forbes op-ed with the ironic assertion that giving amnesty to the undocumented is insufficient and that our government also owes them an apology.
All this ironic behavior foreshadowed a bombshell of irony, a veritable immigration drone dropped on all American employers and newly hired employees, the release on March 8 of a new Form I-9 (Employment-Verification-Eligibility) by U.S. Citizenship and Immigration Services (USCIS). The agency projects that the new I-9 -- consisting of seven pages of instructions to complete three pages of the form itself (up from the current one-page form) -- will impose an annual compliance burden of $1.2 billion on businesses and workers, not to mention a yearly cost to the federal government of $11.5 million.
With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?
CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the "silent raids" and game of gotcha to continue and may well prove unnecessary. Notwithstanding the government's unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.
Why did the form change?
The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:
- The old form “expired.”
- The expiration gave USCIS an opportunity to implement improvements to the form.
- Improvements (according to USCIS) include:
- Adding “helpful” fields such as the employee e-mail address and telephone number
- Revising Section 1 to make it “easier to read and understand”
- Adding an area for a 3D barcode to “promote the modernization of USCIS forms”
- Giving employers more space
- Making the instructions clearer and easier to understand
Whether this was truly the most opportune time to make changes to the form is highly questionable. Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now. Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date? USCIS doesn't say.
Did USCIS adequately respond to public comments?
Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments. While this suggests that USCIS actually read the comments, the agency's response suggests that little serious consideration was given to the many comments proposing meaningful improvements to the form. The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.)
The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions. The List of Acceptable Documents still occupies a single page. Aside from formatting and stylistic changes, there are also substantive changes:
The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.
Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).Confirmation that P.O. Boxes are not acceptable.A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).The addition of instructions for minors and disabled employees.In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.New fields have been added for employees to record telephone numbers and e-mail addresses. These fields are optional. The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name&rdquo, and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name).Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form. This relates to CBP’s plans for automation of the I-94 card. Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data. Others are instructed to write “N/A” in these fields.The signature box for the employee has been improved to prevent employees from signing outside of the box.In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.” While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.“Alien #” has been changed to “Alien Registration Number/USCIS Number.” For many, this causes confusion. Let us make it clear: the numbers are the same, but some government-issued documents use different terms to refer to the same number.A 3D barcode box has been added to the form. This is a mysterious box, as it is unclear what the government plans to do with it. All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.Additional dedicated fields for recording “extra” List A documents have been added. These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards. They may cause confusion, however, for others. It is still not clear which document should be recorded first, second, or third.The employer’s attestation statement has been changed somewhat. It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes. Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”
What should employers do?
USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.
With that somewhat clunky guidance, we suggest that employers do the following:
Consider waiting to use the new form until you take time to:
Read and digest the revised M-274 Handbook for Employers, available here.Update your company policies and protocols to reflect changes to the form.Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them.Anticipate questions and issues that may arise.Be ready to fix the foreseeable mistakes that are likely to arise.Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.
* * *
chastised Sen. Paul's filibuster, calling it a "political stunt" meant to "fire up impressionable libertarian kids in their college dorms." No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.
Perhaps, Sen. McCain will persuade his "Gang of Eight" compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.
Updated 07-16-2013 at 03:27 PM by APaparelli
"U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts."
Nothing of substance has changed since I offered that post last August, save for a groundbreaking election that reversed years of Republican opposition and Democratic indifference, leading to a bipartisan effort to reform the immigration laws comprehensively.
While federal legislators and the Obama Administration are putting in place new scaffolding for immigration reform, the foundation remains broken and shaky. A path to citizenship, enhanced border security, disincentives to illegal entry and employment, and adequate future flows of legal workers are all well and good. But the superstructure of the new immigration system will topple and the temptation to enter illegally or overstay will return if the basic approach to justice, fairness and due process is not dramatically transformed.
Reforms of the immigration justice system could conceivably be narrow or wide-ranging. A necessary, if partial, solution -- just a first step -- would reform the appellate process within U.S. Citizenship and Immigration Services (USCIS). This agency countenances a woefully unjust appellate body, the Administrative Appeals Office (AAO), that reviews decisions of USCIS field offices and regional service centers denying requests for immigration benefits submitted by American and foreign citizens and U.S. employers.
As I've noted recently, the AAO “is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.” The AAO, however, is only part of the problem; reforms to the system of administrative justice at USCIS must be holistic and comprehensive.
Administrative reform (which Congress should enact into law rather than trust the agency to promulgate) must begin with a change to the USCIS rules which now limit the types of parties (a) who are permitted to appear before the agency and (b) the even smaller population of persons and organizations allowed to appeal an adverse decision. Moreover, the initial decision by a USCIS adjudicator must include an articulation of the evidence submitted and a detailed ruling on each of the legal issues raised.
In all, I offer "25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services," and welcome reader commentary. These suggestions, if adopted, would improve the system of immigration justice, but they only nip at solutions.
Real justice reforms in the immigration arena would produce efficiencies, cost savings, improved access to justice, and beneficial changes to the way binding legal precedents are decided. As detailed at length in a February 27, 2013 New York Law Journal article, "Appealing Alternatives: Immigration Justice System Re-Imagined," by Ted J. Chiappari and me, Congress should establish a single Federal Immigration Court with full powers under Article I of the Constitution to hear appeals of all immigration-related administrative decisions rendered by the several agencies and departments in Washington.
Such reforms would also upgrade the professionalism and commitment to zealous advocacy of the immigration bar (whether in private practice or government service), while making the law more understandable and accessible to the public and the growing numbers of lawyers whose substantive expertise is other than immigration but who laudably engage in providing pro bono immigration legal services to individuals and non-profits.
Modeled after the Federal Bankruptcy Court, the proposed Federal Immigration Court would allow judges to develop the necessary expertise in all areas of immigration law. It would also preclude the announcement by the federal agencies and departments of policy by administrative ruling rather than by the promulgation of proposed rules under the Administrative Procedure Act, which offers the public prior notice and the opportunity to comment before any immigration regulation would be made final.
So let's cut to the chase. Here is the essential kernel of thought to digest from the introduction and conclusion of the cited New York Law Journal article:
If, as author Robert Sherrill maintained in his 1970 book, Military Justice is to Justice as Military Music is to Music, then immigration justice in 21st Century America is as melodious as an atonal, off-pitch cacophony. The forms and forums for truth-seeking and dispute resolution under the U.S. immigration system are wide-ranging, largely counter-intuitive and often too dysfunctional to mete out true justice. . . .
[I]mmigration justice today is unmelodious and painful to sit through. With a new Immigration Court as orchestral director, however, the several administrative agencies and immigration stakeholders sitting in musicians’ chairs could render a tour de force ensemble production, a command performance to delight Lady Justice and all citizens, foreign and domestic alike, who care deeply for her continued health and well-being.
Updated 07-16-2013 at 03:29 PM by APaparelli
One of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for "future flows" of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border.
The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.
Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a "Joint Statement of Shared Principles," offering seeming harmony on future flows in these words:
[There] are instances - even during tough economic times - when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . .
[We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today's technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.
The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS's current mission already seems to align nicely with the task of gathering relevant job-shortage data:
The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.
The problems with the concept, however, are many.
For one, we tried this before and it went nowhere. In 1990 Congress commissioned DOL to set up a three-year experiment requiring a "determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . ." [See the Immigration Act of 1990 § 122(a).]
When the Labor Department proposed its initial list, however, all hell broke out. Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified. Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:
Does BLS project future labor shortages or surpluses?
No. The BLS projections assume a labor market in equilibrium, i.e., one where overall labor supply meets labor demand except for some degree of frictional unemployment. . . .
Furthermore, attempts by some to ascribe shortages or surpluses to our projections are based on an incorrect comparison of the total employment and total labor force projections, two separate and fundamentally different measures. . . . Users of these data should not assume that the difference between the projected increase in the labor force and the projected increase in employment implies a labor shortage or surplus.
Instead, as I've noted in previous blog posts and explained to National Public Radio's Martin Kaske on Morning Edition this week, employers burden under an artificial labor certification program, DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers, is an "empty ritual":
PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.
KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.
Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. ("Don") Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:
[Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.
Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.
I agree with Don Crocetti on the importance of removing emotion, politics and subjectivity from the current process for declaring occupational shortages and on the need for real-time, data-driven reports of jobs that go unfilled. I offer, however, some friendly amendments.
U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs. A simple print-out of the screen shot from the government forthcoming database's showing the lack of workers in the occupational classification should be all that's needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition. Thus, DOL's current PERM labor certification procedure could be eliminated.
Moreover, there should be no change in current H-1B requirements relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas. As I explained to NPR's Martin Kaste:
These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can't work.
So let us now face the question posed in the title of this post:
Will the new labor-business accord produce an immigration death panel? The answer is "NO" -- as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.
But an economy-killing immigration death panel it will assuredly be -- a veritable Dr. Caligari's cabinet -- if instead a "bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues."
[Blogger's Note: Prolific and always astute Karin Wolman, lawyer extraordinaire in immigration matters involving artists, entertainers and others of superlative talent, once again offers a thoughtful and thought-provoking assessment ("with welcome edits by Stacey A. Simon") of the clash of the creatives with the hard realities of modern-day immigration law and practice. Grimace and enjoy.]
The Extraordinary Immigration Tango:One Step Forward, Two Steps BackBy Karin WolmanThere is a strange dance of duality going on in immigration law and policy, where all sides insist that the U.S. welcomes the world’s best and brightest talent, despite plenty of evidence to the contrary. The President recently acknowledged the need for reform in his State of the Union address, when he said, "real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy."
The Director of U.S. Citizenship and Immigration Services (USCIS0 Director Alejandro Mayorkas issued a public message in 2012 which began:
Throughout the past year, USCIS has placed significant focus on advancing one of our immigration system’s foundational goals: promoting America’s economic prosperity. On numerous occasions, we gathered feedback on how to best maximize the potential of current immigration law to create jobs for U.S. workers, and this feedback greatly informed our actions. As a result, we have made significant progress in a number of areas of interest to stakeholders related to employment-based and high-skilled immigration.
This charm offensive is at odds with what immigration practitioners and US employers experience every day with respect to how their petitions are treated. The culture of "No" continues, especially for persons of extraordinary ability, where examiners grasp at straws or fabricate any excuse to deny or dismiss entire categories of evidence presented, or summarily deem them without merit.
USCIS periodically releases employer bulletins, policy memoranda, Request for Evidence ("RFE") templates, and updates to the Adjudicator’s Field Manual. These "clarifications" of the adjudication standards are typically already in use when published in draft form, making the comment period something of a charade. The problem with implementing draft RFE templates and interim rules is that they often include novel requirements or try to resurrect requirements that the Service has unsuccessfully attempted to implement in the past, which are wholly unsupported by the law – in addition to offering guidance that may mislead examiners or prompt them to apply incorrect standards. Sadly, this has happened again with the recent publication of proposed draft Request for Evidence (“RFE&rdquo Templates in the O-1 and O-2 visa categories, posted by USCIS for public comment from January 22 – February 5, 2013, but plainly in use by adjudicators already.
The American Immigration Lawyers Association has already published formal comments to the recent proposed RFE templates, so I offer here a few examples from these templates that are, at best, misleading to adjudicators, and at worst, just plain wrong:
In the RFE template for O-1A aliens of extraordinary ability in sciences, education, business or athletics, the section challenging awards or prizes of lesser national or international significance [one of their eight criteria under 8 CFR 214.2(o)(3)(B)(i)] quotes and distinguishes this standard from the higher standard allowing evidence of a one-time major, internally recognized award [at 8 CFR 214.2(o)(3)(A)], but by using the identical language, it tempts hasty examiners to misapply the higher standard for a one-time award and to improperly dismiss as irrelevant or insufficient any professional awards or prizes that are not “a major, internationally recognized award.”The RFE templates for O1A cases in sciences, education, business or athletics, for O-1B arts cases, for O-1B film and television cases, and both RFE templates for O-2 support personnel, all include, under a section relating to peer advisory consultations, the mistaken assertion that a consultation must state “whether the petition requires the services of an alien of extraordinary ability.” Such a requirement was acknowledged by Legacy INS as unsupported by law nearly two decades ago, in the preamble to the final O & P regulations, which noted: “After careful consideration, the [Immigration and Naturalization] Service [the legacy immigration agency preceding USCIS] agrees that there is no statutory support for the requirement that an O-1 alien must be coming to the U.S. to perform services requiring an alien of O-1 caliber. As a result, this paragraph has been deleted from this final rule.” See 59 Fed.Reg.156, pp.41818, 41820 (Aug. 15, 1994). Even if there were such a requirement for O-1 aliens, it would never apply to O-2 support aliens, who are not required to possess extraordinary ability in their own right, but must show the essentiality of their services to the O-1 principal alien.Under quite a few regulatory criteria, the proposed RFE templates give an adjudicator the option to state, “You did not submit evidence for this requirement. You may still submit evidence to satisfy this requirement.” Sadly, this language encourages time-pressed adjudicators to overlook or ignore evidence and then simply claim that it was not included in the petition. It is now a frequent occurrence for an RFE to state that evidence in support of a specific criterion was not submitted, when it was in fact included in the initial presentation, was itemized in an exhibit list, was referred to or quoted in the petitioner’s supporting letter, and its relevance to one or more regulatory criteria was explained in the attorney’s cover letter.In their defense, USCIS adjudicators are given very little time to review each petition (only 10 to 15 minutes per case, by some accounts). They are under considerable pressure to meet production goals, they do not control mailroom contractors who may discard exhibit lists and cover sheets, and they undergo no supervisory review when formulating and sending out Requests for Evidence.However, it seems they face no adverse consequences at all for claiming that evidence wasn’t there when it was. Due to erroneous claims of this kind, petitioners face unnecessary delays and attorneys have to duplicate their work, re-explaining previously-submitted evidence. The examining officers themselves have to spend much more time reviewing the response to an RFE than they would have had to spend reading the initial petition carefully and approving it the first time around. To fix this, USCIS could allot adjudicators a bit more time to review each case, remove incentives to generate RFEs, and require supervisors to review draft RFEs before they are sent out. The mass-production model currently in place does not lead to accuracy or efficiency in reviewing petitions for a visa category as diverse as the O-1.
USCIS is to be commended for its efforts to bring some predictability and consistency to adjudications in this area long plagued by erratic decisions. However, the design of RFE templates should not be viewed as an opportunity to make up new rules or resurrect dead ones, nor should the existence of options in a template give officers free rein to make misstatements that create wasteful, duplicative work for themselves, for the petitioner and for counsel, and that make it costlier and slower for US employers and agents to sponsor the top talent they need.
Updated 07-16-2013 at 03:30 PM by APaparelli