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Angelo Paparelli on Dysfunctional Government

Immigration Triangulation -- Another Dysfunctional Government Policy

Rating: 4 votes, 5.00 average.
The dictionary defines the adjective, "passive-aggressive," as "a type of behavior or personality characterized by indirect resistance to the demands of others and an avoidance of direct confrontation." That is an apt characterization describing how federal bureaucrats work their will in the immigration ecosphere. The passive-aggressive behaviors show up in efforts by federal immigration officials to enlist and "deputize" third parties to enforce national immigration policies.

The ploy plays out in a variety of contexts -- from union-management relations to the interactions of corporate customers with their service providers, as well as to visa applicants trying to persuade American consular officials of not only their own their eligibility to receive U.S. immigration benefits but also the worthiness of persons and firms petitioning on their behalf.

How so? Consider these familiar scenarios:

Verifying Employment Eligibility
.
Union dues are the mother's milk of organized labor. If workers cannot be hired or remain employed because they lack authorization to work in the United States, the union becomes less well nourished. In industries with historically high concentrations of unauthorized workers (say, manufacturing, hospitality, food service, construction, and janitorial services, among others), loss of dues payments from prospective members never hired, or current members terminated, for lack of work permission may force the union beyond suffering mere malnutrition to facing a life-threatening malady.

The federal government, however, has no statutory power to discourage unions from enrolling unauthorized workers as members. Its power rests with the Immigration Reform and Control Act which requires or allows various methods to determine employment eligibility and imposes burdens on employers to maintain proper records (the Form I-9 and, in some cases, digital records of immigration compliance contained in the E-Verify database) and refrain from (knowingly) hiring the undocumented.

Not surprisingly, federally induced immigration skirmishes between labor and management often ensue. Employers opt for strict compliance with the laws punishing unauthorized employment while unions urge on management only investigations that probe ever so lightly into questions of the union members' identity and work eligibility. Either way, the immigration triangulation strategy is a winner for the bureaucrats. Probe too deeply and the employer faces charges of immigration-related employment discrimination from the Justice Department's Office of Special Counsel for Unfair Immigration-Related Employment Practices or from state regulators and private litigants under laws such as those just passed in California.

Contracting with Vendors
.
In 21st Century America, technological innovation and globalization have transformed the way goods are produced and services provided -- a "duh!" statement of the highest order. Increasingly, American businesses are opting to "rent" rather than "buy" human capital; they prefer engaging third-party providers than hiring workers directly. This is not necessarily job-shopping or staff augmentation writ large. Rather, American corporate customers are finding it best to focus on their core competencies and to acquire sophisticated services from consultants, vendors and service providers which would otherwise be too costly or off-mission to develop internally.

Here too, the federal government has no statutory power under current immigration laws to regulate relations between private parties, in this case, between customers and vendors who legally contract for needed services. Yet, immigration triangulation is the stratagem of bureaucratic choice. The Labor Department insists that a contractor using employees in "H-1B"" status (the visa category for workers in specialty occupations) to fulfill its contractual obligations to its customers must post paper notices or publish electronic notices on the customers' premises or its intranet, and in some cases, must interrogate the customer about its layoff practices and plans under the "secondary non-displacement" obligation. If the customer refuses to allow such intrusions, the government -- if it has its way -- would force the services vendor to breach its contract by pulling its H-1B employees from the customer's job site. Similarly, U.S. Citizenship and Immigration Services (a component of the Homeland Security Department), relying on dubious legal authority (one of many infamous "Newfeld Memorandums") often refuses to approve H-1B visa petitions submitted by law-abiding contractors unless their customers disclose confidential and proprietary information about the terms of the contract for services.

Demonstrating visa eligibility
.
A new form of triangulating behavior has recently surfaced among U.S. consular officers. This ploy involves a disinclination to consider evidence of work-visa eligibility unless it comes directly and solely from the applicant's mouth during a consular interview. While perhaps plausible at first blush, the new policy disregards the fact that certain "corporate facts" (e.g., strategic plans, proprietary information, financial conditions, contracts with third parties, etc.) are simply outside the ken of the visa applicant. Until recently, however, consular officers routinely reviewed written submissions from petitioning employers seeking work visas for its foreign employees. Indeed, the State Department has long recognized the inability of a visa applicant to know and relay all of the corporate facts, and thus urged consular officers to make inquiry of the employer, as shown in this 1994 cable:

[C]onsular officers should note that in many cases involving third party contractors, the visa applicant may not be fully aware of the arrangements made by his/her employer. And the contracting company. Therefore, when questions arise as to the exact nature of such arrangements, consular officers should make it a point to confer with the employer or of allowing the alien to bring the matter to the attention of the employer before making a finding of fact.

* * *
Is there a legal basis for these sorts of immigration triangulation? No. But power is as power does. Bullying is now seen -- at least in America's schools -- as unacceptable behavior. Would that Congress reach the same conclusion with the bullying and passive-aggressive behaviors of America's immigration bureaucrats.

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Comments

  1. Dave Francis's Avatar
    30 MILLION IMPOVERISHED ILLEGAL ALIENS COULD BE ARRIVING BEGINNING NEXT YEAR AND EVENTUALLY ABLE TO SPONSOR FAMILY MEMBERS WHEN LEGALIZED--IF INSIDIOUS SENATE AMNESTY BILL IS ENACTED? Just remember that the 1986 Reform & Control Act was the initial Amnesty of which the laws were never enforced thanks to both political parties corrupted by big business, unions, the churches and radical minority groups. In three decades this nation has been mired in abject poverty, and taxpayers had to financially support illegal alien?s families and children that could claim automatic citizenship. THERE IS AN INSURMOUNTABLE DIFFERENCE BETWEEN THOSE WHO STOOD IN LINE TO IMMIGRATE AND THOSE WHO JUST MOVED IN WITHOUT PERMISSION? THE LATTER IS A CRIMINAL ILLEGAL ALIEN? THAT WILL NEVER CHANGE AND SHOULD BE HELD ACCOUNTABLE WITH NO CLAIM TO CITIZENSHIP, EVER. We cannot even comprehend the amount of money shed from the state and federal treasuries to pay for the benefits afforded foreign nationals from every corner of this planet.

    The Senate bill is an abomination and any politician who signs it into law, should be retired forcibly in every future election. To keep our sovereignty from President Obama?s prosecutorial discretion ideology in his administration taking away more of our rights, to protect us from more ingress of the United Nations, from another illegal immigration invasion, become one of the millions of members in the TEA PARTY, JudicialWatch, Numbersusa or any grass-root moderate Conservative organization. This is Bipartisan corruption in introduce cheap labor and lowering of wages for Americans as anticipated by the GOP establishment and millions of cheap votes for Democrats to turn this Nation into a Socialist wilderness. Only chance to survive is a biometric universal Social Security ID card, to stop theft of American jobs, which Democrats are stringently against, end voter fraud and stay the rising dilemma of credit theft.
  2. ImmigrationLawBlogs's Avatar
    There are two basic sides in the immigration reform debate. One is the side of rational argument, shown here by the main post, and the other is the side of hate, shown by the above comment to this post.

    It is America's tragedy that both sides, reason on the one hand and pure emotion and hate on the other, are being given equal weight in the halls of Congress and by the media.

    Actually, it would be more correct to say that hate and prejudice have the upper hand, at least for now, in the House of Representatives. Otherwise we would already have had comprehensive reform many months ago.

    Roger Algase
    Attorney at Law
  3. stardelamor's Avatar
    Quote Originally Posted by Dave Francis
    30 MILLION IMPOVERISHED ILLEGAL ALIENS COULD BE ARRIVING BEGINNING NEXT YEAR AND EVENTUALLY ABLE TO SPONSOR FAMILY MEMBERS WHEN LEGALIZED--IF INSIDIOUS SENATE AMNESTY BILL IS ENACTED? Just remember that the 1986 Reform & Control Act was the initial Amnesty of which the laws were never enforced thanks to both political parties corrupted by big business, unions, the churches and radical minority groups. In three decades this nation has been mired in abject poverty, and taxpayers had to financially support illegal alien?s families and children that could claim automatic citizenship. THERE IS AN INSURMOUNTABLE DIFFERENCE BETWEEN THOSE WHO STOOD IN LINE TO IMMIGRATE AND THOSE WHO JUST MOVED IN WITHOUT PERMISSION? THE LATTER IS A CRIMINAL ILLEGAL ALIEN? THAT WILL NEVER CHANGE AND SHOULD BE HELD ACCOUNTABLE WITH NO CLAIM TO CITIZENSHIP, EVER. We cannot even comprehend the amount of money shed from the state and federal treasuries to pay for the benefits afforded foreign nationals from every corner of this planet.

    The Senate bill is an abomination and any politician who signs it into law, should be retired forcibly in every future election. To keep our sovereignty from President Obama?s prosecutorial discretion ideology in his administration taking away more of our rights, to protect us from more ingress of the United Nations, from another illegal immigration invasion, become one of the millions of members in the TEA PARTY, JudicialWatch, Numbersusa or any grass-root moderate Conservative organization. This is Bipartisan corruption in introduce cheap labor and lowering of wages for Americans as anticipated by the GOP establishment and millions of cheap votes for Democrats to turn this Nation into a Socialist wilderness. Only chance to survive is a biometric universal Social Security ID card, to stop theft of American jobs, which Democrats are stringently against, end voter fraud and stay the rising dilemma of credit theft.


    You are pushing and recruiting for white power sites you think immigrants are bad wait till your usefulness is over and than have total power they do not discriminate hate is hate.I feel sorry for you & you have no idea how the system works.
    What you dont seem to realize is many of these people can not wait. My husband should have been offered amnesty but no they kept deporting him. Well he was murder 12-15-2013 he kept coming back to me I wish to God I had brought him back illegally again because he would still be alive. This has forever changed my life he can not be replaced.A persons life may be only worth a piece of paper to you but to me he was the most caring loving, big heart man I had ever met.There are al ot of fine people that may not have a lot but they would give you the shirt off their backs. You will never meet these people your eyes are blinded by hate. I do not judge people on a piece of paper many of our laws need to be changed. I feel like the system beat me up & spit me out destroyed my life and I have lost my will to live at this point in my life, I am not a young woman and I would give everything I own to have him back. I fought for so long to get him documented to no avail to you he was undocumented to me he was my world. Santos Celso Munguia Garcia the finest man I have ever known.RIP my love una dia
  4. Janet Higbie's Avatar
    Yes, a functional system must come, una dia.
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