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This will continue my comment in the September 19 ID about the Republican assault on minority voting rights and its effect on immigration. Harold Meyerson has written an article on the Washington Post website, dated September 20, called: "The GOP is trying to rig the 2012 election". It discusses a proposal by Pennsylvania Republicans to split the state's electoral vote in the 2012 election according to Congressional district, rather than following the "winner take all" method used in almost all other states.
Like most states, Pennsylvania is heavily gerrymandered, with 8 of its 12 Congressional districts solidly Republican. This means that no matter how the vote went in that state, even if there were a huge turnout for the Democrats in Philadelphia or other cities with large numbers of minority voters, the Republicans would still win the state's electoral vote count by a 2-1 margin. There are reports of similar proposals by Republicans in other states that are normally Democratic or swing states, but, like Pennsylvania, now have Republican legislatures and governors. Of course, there are no proposals to change the voting system in states that are already solidly Republican.
This radical perversion of democracy would render the votes of minority and less affluent Americans meaningless and make it virtually impossible for the Democrats ever to capture the White House again. Barack Obama might go down in history as America's last Democratic president. America could become an oligarchy ruled by affluent whites, in which minorities, middle class and working class Americans would have no voice.
This death of American democracy could quickly lead to the closing of America's borders against most or all non-white immigrants and the expulsion of a large number of those who are already in this country. It could also lead, sooner or later, to changing the Constitution to abolish the 14th Amendment's guarantee of birthright US citzenship for all children born in the US and replacing it by a system based on the citizenship or immigration status of their parents.
This would, in effect, bring about a whites only birthright citizenship policy, just as the dissenting Justices in the landmark 1898 Supreme Court Wong Kim Ark case, upon which the doctrine of universal birthright citizenship depends, advocated. There are two warnings in this. First, it is suicidal for the Obama adminsitration to continue its policy of ethnic cleansing and mass expulsion of minority immigrants though Orwellian programs such as "Secure Communities". This only ensures that minority Democratic voters will stay home next November, or vote Republican out of protest (if they are allowed to vote at all).
Second, it is equally suicidal for the pro-immigration community to look at immigration as only an issue by itself without taking into account the larger war against all minorities. The current attempts to restrict legal immigration while engaging in mass expulsion of minority unauthorized immigrants, conducted by an African-American Democratic president who is engaging in cheap and cynical pandering for white Republican votes, are not only terrible politics. They could put American democracy itself in great danger.
With the President's supporters pleading for action, Barack Obama at last has pivoted to jobs. "Pass this bill [the American Jobs Act]" has become his oft-shouted mantra. Surprisingly, however, career bureaucrats within the Departments of State and Homeland Security apparently haven't read his September 8 speech to Congress and instead are taking affirmative steps to prevent job creation. Examples of this misbehavior are abundant across all work visa categories, as this blog has shown.
For the sake of illustration, however, let's get granular and consider the latest trends in visa refusals for a single category, the L-1B "intracompany transferee" visa, available to workers within a global firm possessing "specialized knowledge."
The problem has become especially acute with the recent flood of L-1B petition and visa denials involving citizens of India, thus raising the concern that the Indian refusals may be founded on unlawful bias, such as citizenship status, national origin, or race discrimination, or, upon the counterintuitive Congressional and media claims that the inbound dispatch of L-1 workers contributes to the claimed offshoring of jobs.
American businesses count on L-1B workers to design and develop innovative products, fulfill contracts and manage important projects on which U.S. jobs for American workers depend. With global competition accelerating, a significant delay in granting L-1B visa benefits to a deserving candidate, such as by a consular officer's unexplained return of an approved petition to USCIS for readjudication, a burdensome, boilerplate USCIS request for additional evidence, or an outright denial by either agency -- any one or all of these actions can lead to the loss of American jobs to employees of our competitors abroad.
For those unfamiliar with this nonimmigrant category, the L-1B intracompany transferee classification, together with the L-1A for executives and managers, has been around since 1970. The L-1B allows a U.S.-based business to transfer workers from the employ of a foreign affiliate that is under at least 50% common ownership or control with the U.S. petitioner in the combined global enterprise. The visa applicant must have been employed for at least one year abroad by a foreign affiliate out of the last three years, performing in a job involving specialized knowledge, and must seek to work for a related entity in the U.S. in a like capacity. Individual petitions for L-1B visa classification are submitted to U.S. Citizenship and Immigration Services (USCIS), Regional Service Centers (RSCs), which forwards their petition approvals to a U.S. consulate or embassy abroad where the consul interviews the L-1B visa applicant. Consular officers also interview "blanket" L-1 visa applicants from larger companies to determine whether either of the alternative definitions of specialized knowledge apply and an L-1B visa should be issued.
A few years back, larger global enterprises could instruct their candidates (specialized-knowledge professionals with a relevant college degree) to apply directly at a U.S. consular post abroad under an approved blanket L-1 petition as long as he or she had gained only six months' worth of specialized knowledge, rather than the one year minimum required now, which in either case is still a comparatively brief period required by statute.
The term "specialized knowledge" has had a tortuous and tortured history within the legacy immigration agencies. The trend as late as 1988 had been to interpret the term very strictly, culminating in a case, Matter of Sandoz Crop Protection Corp., which equated specialized knowledge with a level significantly above even "proprietary" or "patented" knowledge:
The petitioner's proprietary interest must be such that the knowledge required is clearly different from that held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.
A petitioner's ownership of patented products and processes or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must be a key person with materially different knowledge and expertise which are critical for performance of the job duties; which are critical to, and relate exclusively to, the petitioner's proprietary interest; and which are protected from disclosure through patent, copyright, or company policy.
Later that year, however, a policy memorandum from legacy Immigration and Naturalization Service (INS), clarified that this interpretation of specialized knowledge was "more restrictive than Congress or the [INS] intended" and instructed adjudicators to apply the new clarification so that the L-1B would be "more flexible and useful to international businesses":
The problem stems from using a too literal definition of the term "proprietary knowledge" wherein the knowledge must relate exclusively to or be unique to the employer's business operation. Using this narrow interpretation of proprietary knowledge excludes numerous employees of international companies who were intended by Congress to be accommodated under the L classification.
Since the passage of the Immigration Act of 1990 (IMMACT 90), "specialized knowledge" has required (consistently with the 1988 INS clarification) either "special knowledge possessed by [the applicant] of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets," or "an advanced level of knowledge or expertise in the organization's processes and procedures."
In addition, in the preamble to the proposed regulations implementing IMMACT 90, the former INS acknowledged that "the intent of [IMMACT 90] as it relates to the L classification was to broaden its utility for international companies." Two INS Headquarters memos, in 1994 and 2003, and a 1994 State Department cable to the post in Madras (now Chennai), India reaffirmed the IMMACT 90 expansion of L-1B specialized knowledge. The 1994 State Department cable is significant because -- as shown below -- the very same Visa Office and consular post are at the epicenter of unlawful, revisionist and newly restrictive interpretations of specialized knowledge:
Consuls should satisfy themselves that the applicant possesses knowledge that is not general knowledge held commonly throughout the industry but is truly specialized. The [Visa Office] notes this should not be construed to mean that an individual's expertise must be narrowly held within the company. The fact that the knowledge is held widely within the sending entity does not preclude it from being specialized.
With respect to the issues of remuneration of L-1 employees, there is no requirement (as for H-1Bs) that an individual be paid the prevailing wage. [Consular officers] must be satisfied that the applicant will not become a public charge. Beyond that, it does not appear to [the State Department's Visa Office] that the applicant's compensation may be addressed by [Consular officers].
Nothing of legal substance has changed since the IMMACT 90 Congress legislated an expansive interpretation of the specialized knowledge eligibility criteria, save for rogue (and now off-message) actions to restrict L-1B approvals, especially if the applicant is an Indian citizen.
The trouble began in earnest with a 2004 Visa Office cable described as "clearly of greatest significance to the Indian Posts," and then with the USCIS Administrative Appeals Office (AAO), which published a 2008 non-precedent case involving an Indian software engineer, followed by USCIS adjudicators at the RSCs who have relied on that case to issue unwarranted L-1B RFEs and petition refusals, and by January, 2011 changes of heart by the State Department's Visa Office (relying on the same AAO case) and the consular posts in India.
More recently, however, the USCIS Office of Public Engagement (OPE), responding commendably to stakeholder concerns, held a May 12, 2011 Listening Session on the L-1B category. The OPE's notes understate the intensity of complaints voiced during the call:
An overwhelming majority of stakeholders asserted that the existing regulatory definition of "specialized knowledge" and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of "specialized knowledge" should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. . . .
USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.
If the USCIS has indeed offered "additional guidance and training to USCIS officers adjudicating L-1B petitions," the lessons have not been learned. Job destruction by way of L-1B denials at the RSCs continues unabated, notwithstanding the President's jobs campaign. The same can be said of the consular posts in India where, especially since March, employers and immigration lawyers have witnessed a steady increase in unwarranted L-1B refusals.
Applicants have reported that interviews -- lasting but a few minutes -- are perfunctory, supporting documents are ignored. Consular officers are prejudging the case (often filling in the L-1B visa refusal notice at the start of the interview), and concluding that any passing reference to a company other than the petitioner warrants the unjustified conclusion that the knowledge must not be specialized. Moreover, notwithstanding the 1994 State Department cable, consuls are asking irrelevant questions about wages paid, while disregarding the value of supplemental stipends for housing, food and travel in the U.S., and ignoring the instruction that specialized knowledge may be held widely within the foreign affiliate ("[the] fact that the knowledge is held widely within the sending entity does not preclude it from being specialized").
The State Department defends its high Indian refusal rate by suggesting that the posts in India receive more L-1B applications and approve more L-1B visas than any other U.S. consulates or embassies worldwide. Neither State nor USCIS has explained, however, why "specialized knowledge" is simply far more difficult to establish for citizens of India than for nationals of any other country, and why an outdated set of L-1B eligibility standards applies much more to Indians than to other visa applicants.
In the absence of clear answers by State or USCIS to these apparently discriminatory and unlawful practices adversely affecting Indian applicants and their petitioning U.S. employers, the task of revealing the truth and redressing wrongs must turn to another government agency or the media. Within the federal government, the Department of Homeland Security's Office of Civil Rights and Civil Liberties (OCRCL) is endowed with explicit legal authority to investigate. All that is required to initiate an OCRCL investigation is for disadvantaged parties to file a well-documented complaint alleging that invidious discrimination has occurred or that the cherished, constitutionally-derived (5th Amendment) civil liberty -- due process of law -- has been violated.
While some Indian L-1B aspirants may pray to the "Visa God," they and others can also seek and hopefully receive more immediate relief by pursuing the OCRCL's decidedly terrestrial solution.
The Tennessee Immigrant and Refugee Rights Coalition has prepared a report entitled "The Forgotten Constitution," which examines the interconnection of racial profiling and immigration enforcement in Bedford County, Tennessee.
The report is broken down into five parts.
Part 1 describes initial encounters that immigrants have with law enforcement officials;
Part 2 examines the booking and detention procedures at the Bedford County Jail;
Part 3 reports problems that immigrants have with the Bedford County court system;
Part 4 looks at issues that immigrants deal with once they are taken into custody by Immigration and Customs Enforcement; and
Part 5 details what is being done by activists to attempt to fix the problem.
In sum, the report explains that: "To be an immigrant or refugee in Bedford County is to be treated with suspicion or outright hostility by one's own government, whose offices still exhibit vestiges of the overt racial apartheid of years past."
Click here to read the full report.
The press release makes it all sound so wonderful:
Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement (ICE) Director John Morton today announced a new initiative to streamline the international student visa process for foreign students seeking to study in the United States. The Study in the States initiative is a key component of a government-wide effort to encourage the best and brightest foreign students to study and remain in the U.S.
"Attracting the best and brightest international talent to our colleges and universities is an important part of our nation's economic, scientific and technological innovation and competitiveness," said Secretary Napolitano. "Foreign students and exchange visitors bring invaluable contributions to our nation, and the Study in the States initiative is an important step in empowering the next generation of international entrepreneurs, right here in America."
More than 1.1 million active nonimmigrant students and exchange visitors and their dependents study in our nation's world class system of universities, exchange programs, and training opportunities. The Study in the States initiative will examine regulatory changes, expand public engagement between the government and academia, and provide a central on-line information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a streamlined, user-friendly format.
"Study in the States encourages international students who seek the wealth of educational opportunities available in the U.S. to remain here following their studies and apply their new skills here in our country," said ICE Director Morton. "We aim to strike a balance--providing an open and welcoming experience for international students and visitors seeking information, while maintaining the integrity and security of our visa process. This site is an important step toward reaching that goal."
But it's one thing to issue press releases and web sites with helpful information. It's another far more difficult thing to change internal policies and a seemingly intractible mindset amongst examiners and officers who believe their primary mission is to keep as many people out of the country as they can and not do what's best for the country (though they probably believe that keeping as many people out IS what's best fot the country).
Just ask an immigration lawyer that handles EB-1 petitions for extraordinary ability aliens whether USCIS genuinely appears interested in attracting the best and brightest and you'll get an earful regarding a soaring denial rate for these petitions and jaw dropping examples of incredibly gifted individuals who are being humiliated and basically run out of the country. Director Mayorkas has held several stakeholders calls on this subject and knows about which I write, but there is little evidence he has had any ability to get the situation under control. Best of luck.
Until Secretary Napolitano, Director Mayorkas, Director Morton and senior officials across DHS can figure out how to truly change policies achieve the stated objectives and then actually get examiners carry out those policies either by incentivizing correct behavior or punishing failing to abide by stated policies, then you really have accomplished little.
Secretary Napolitano - don't just talk the talk. Show us you can walk the walk.
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