Memo to the U.S. Senate: America Is Ready for Immigration Reform

June 10, 2013 Leave a comment

Originally posed on HuffPostPolitics

It’s been six years since the full Senate considered an overhaul of America’s immigration system. Since then I have witnessed countless instances of what that delay has meant. I’ve seen American families torn apart by deportation and promising young scientists at America’s finest research institutions blocked by interminable visa backlogs. I’ve watched American companies stagnate because of arbitrary limits on visas for high skilled workers. My fellow immigration attorneys and I have done our best to help a multitude of men, women and children hopelessly caught in the dysfunctional web of archaic laws and regulations that make up America’s broken immigration system.

Yet, sitting in Cleveland, Ohio today, I’m more hopeful than ever that comprehensive reform will become a reality this year. The pundits tell us that the political stars have aligned. President Obama wants to make good on his promise to Latino voters and build a second term legacy. And the Republicans learned last November that a platform limited to “self-deportation” and racial profiling laws are a ticket to electoral disaster.

But my optimism is based less on confluence of political interests than it is the American people. I see an understanding for why immigration reform is necessary around Ohio and the country. Like in Youngstown, Ohio where the renewed vitality of the American auto industry is creating jobs and folks want the immigration problem fixed so that their families remain safe, and local businesses can thrive.

Other cities in Ohio offer the same feeling, like Painesville, Canton, and Freemont Ohio where immigration reform would free American families from the fear of agents invading their homes to arrest an undocumented spouse, parent, or sibling. Immigration reform could mean that the best days may lay ahead for rustbelt cities like Cleveland, Pittsburgh and Detroit where civic leaders could attract global talent if our nation develops an immigration policy that welcomes, rather than rebuffs, foreign investors, innovators, and entrepreneurs.

Over the past weeks, Republicans and Democrats on the Senate Judiciary Committee analyzed, criticized and improved the bill originally introduced by the “Gang of Eight.” That was, in large part, due to the masterful leadership of Committee Chairman Patrick Leahy (D-VT) and his commitment to an open and bipartisan process. Yet as I sat in the Judiciary Committee hearing room I couldn’t help but wonder whether the bill’s chief opponents, Senators Grassley (R-IA), Sessions (R-AL), Cornyn (R-TX) and Cruz (R-TX) would be so bitterly opposed to its core principles, including a roadmap to citizenship, if they knew the undocumented as individuals, not faceless “illegal aliens.” I don’t think these senators could help but respect strong women, like “Lenore” who toils day after day cleaning houses and washing dishes so she can give her four U.S. citizen daughters a better life. Or Manuel, a DREAMer, who was brought to the U.S. from Germany as a child, virtually abandoned, and nearly deported six months before his high school graduation. How could anyone not be impressed by the sheer grit, determination and hard work of these aspiring Americans?

The immigration legislation that is now come before the full Senate is a true compromise; it has provisions that will disappoint everyone. Immigration reform advocates will not like the expanded “triggers” which could delay legalization for years. They’ll also be disappointed by a narrower, less inclusive, path to citizenship than they’d hoped for, by cuts in family immigration, and by the exclusion of same-sex partners of U.S. citizens and lawful residents. Here in America’s heartland that means people like “Steve”, an Iraq war veteran who risked his life for the country he loves, will not be able to spend his life with the person he loves.

Yet, while it’s far from perfect, the immigration overhaul that now goes to the Senate floor is a good bill. It’s the toughest border security measure ever considered by Congress and makes much needed fixes to America’s outdated visa system — including an emphasis on visas for Science, Technology, Engineering, and Math graduates. It makes it harder for employers to game the system by requiring electronic verification of employment authorization, and it includes an arduous, but reasonable, road to citizenship for the 11 million unauthorized immigrants currently living in the shadows.

Last summer, after President Obama announced a temporary reprieve from deportation for the promising undocumented youth known as DREAMERs, I was asked to explain the process to a group in a rural Ohio town. A young girl sitting in the front row sheepishly raised her hand to ask whether the deferral meant she could apply to college. When I answered yes, I saw something I hadn’t seen on an undocumented face in years — a smile born of hope.

Things are indeed different this time around. America is ready for comprehensive immigration reform.

Filed under Business Immigration, Dream Act, Immigration Reform, Politics

Why The #Immigration Deal Won’t Shortchange The Construction Industry

April 9, 2013 Leave a comment

Originally posted at on Apr 9, 2013 at 11:31 on Think Progress Blog

By Adriana Kugler, Guest Blogger and former Chief Economist at the U.S. Department of Labor

Last week, the Chamber of Commerce and the AFLCIO made important progress by reaching agreement on a visa program for non-seasonal low-skilled workers – a key issue which had been holding back the immigration proposal by the Gang of Eight.

The Business-Labor deal caps visas at 20,000 the first year, 35,000 the second year, 55,000 the third year and 75,000 the fourth year. Starting in the fifth year, the cap on W-visas for non-seasonal low skilled workers would be capped at a maximum of 200,000 visas, depending on the state of the economy. That is, the visa cap would go up to 200,000 when the economy expanded and would come down to a lower cap as the economy contracted, with construction visas capped at 15,000. This makes sense, since as the economy enters into a recession there are potentially many U.S. workers who would be available and willing to take these jobs. However, as the economy grows, the cap would need to increase as the labor market becomes tight and it becomes difficult to hire relying just on local workers. To ensure that the wages of US workers are not depressed, W-visas would require employers to pay ‘prevailing wages’ or average wages for workers in the same occupation and experience category. Finally, visa holders would be allowed to change jobs and to apply for permanent status while in the US, which is good for businesses seeking a more stable labor force.

All in all, most are happy with the deal because it offers flexibility to the business community while protecting both US workers and foreign workers coming in on W-visas. Yet, the construction industry has criticized the proposal because it argues that the 15,000 visa cap for construction is too low and would constrain the construction sector at a time when it is expanding again.

There are good reasons to believe that the construction sector’s ability to grow is unlikely to be constrained by this cap on W-visas.

1. The cap would allow the construction sector to hire 1 out of 10 workers through W-visas even during good times. While the construction sector shrank drastically during the Great Recession, this industry has added close to 280,000 since the employment trough was reached in February 2010. Moreover, over the last year, the construction sector has expanded rapidly adding 163,000 jobs. Thus, with the 15,000 visa cap, the construction sector could have hired 15% of its labor force using W-visas alone over the last three-year period and 10% of its workforce over the last year in which the sector grew most rapidly.

2. There are large numbers of US workers ready, willing and able to work in construction. In March 2012, the unemployment rate in construction was 14.7%, higher than in any other major industry group, and almost twice the average unemployment rate in all sectors. In terms of sheer numbers, there are close to 1.2 million unemployed workers whose last job was in construction. Certainly, employers in construction should be able to find experienced construction workers among the over million workers who are available and looking for work in this sector. Even if one thought that some of these workers may leave the labor force or go to other industries, this still leaves a good sizable number of workers looking for work in construction. In fact, construction workers are less likely to leave the labor force than those coming from other sectors, 15% vs. 20% overall. Also, close to 3 out of 4 workers in construction go back to work in this sector, while only 1 in 4 go to work in production, transportation, management, food preparation or other sectors. Thus, even taking out workers who leave to other sectors or out of the labor force, this still leaves 765,000 unemployed construction workers ready and available to work in this industry. Moreover, the unemployment rate for construction workers is very high in all regions of the country (with the highest in the Pacific region at 15.1% and the lowest in the West North Central Region at 9.5%), so that there aren’t specific regions of the country which would likely be faced with shortages of experienced workers in construction.

3. Average wages in construction are low suggesting that shortages are not an issue. The average weekly earnings for men working in construction in 2012 are $741 compared to $854 overall. Even this average number is increased by a few specialty occupations within construction, such as electricians, plumbers, and metal workers. The average weekly earnings are actually much lower for construction laborers ($609) and other less specialized occupations such as drywall installers ($567), roofers ($524) and painters (%559). If the construction sector was truly facing shortages of labor, we would probably see higher levels and increases in earnings in the construction sector.

While the W-visa program will support the renewed growth in the construction industry, the industry is far from facing labor shortages. It would be wrong for the construction sector to view these visas as a substitute for hiring qualified US workers simply to bring down labor costs.

Filed under Business Immigration, Immigration Reform

USCIS Temporarily Suspends Adjudication of Most H-2B Petitions Following Court Order

April 2, 2013 Leave a comment

From US Citizenship and Immigration Services:

Effective March 22, U.S. Citizenship and Immigration Services (USCIS) is temporarily suspending adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa).  That order granted a permanent injunction against the operation of the portion of the Department of Labor’s (DOL) 2008 wage rule related to certain prevailing wage determinations and gave DOL 30 days to come into compliance with the Court order.

Premium processing of H-2B petitions will be suspended until further notice. Petitioners who have already filed an H-2B petition using the premium processing service and receive no agency action on their case within the 15 calendar day period will be issued a refund.

The Department of Labor intends to promulgate a revised wage rule within 30 days of the date of the Court order.  This will allow USCIS to resume adjudication of all H-2B petitions.

Filed under Business Immigration

Comprehensive Immigration Reform Gathers Unstoppable Momentum

April 1, 2013 Leave a comment

Originally posted on Huffington Post Politics
The question now is not whether, but when.

I’m talking about a major overhaul of America’s dysfunctional immigration system. With Friday’s agreement between the AFL-CIO and the U.S. Chamber of Commerce on the terms of a guest worker program it’s clear that immigration reform is going to be a reality this time around. The momentum is unstoppable.

The agreement, which bridged a gap that potentially threatened a broader immigration overhaul, provides for an immigrant guest worker program which includes a pathway to permanent residence. According to press reports, a new temporary immigrant “W Visa” will be created for “low skilled” workers in shortage occupations, including immigrants in hospitality, janitorial, retail, and construction jobs; you know, the folks that clean hotel rooms, wash dishes in stuffy restaurant kitchens, pick fruit in the blazing sun, and toil in the construction industry — occupations which, in fact, require a lot of focus, dedication and, yes, skill.

The agreement protects American workers by regulating guest worker wage levels and tying the number of available visas to the strength of the U.S. economy, including the unemployment rate. According to BloombergBusinessweek, the program “would start with 20,000 visas in the first year, 35,000 in the second, 55,000 in the third and 75,000 in the fourth. On year five the number would grow or shrink based on a formula that takes into account the unemployment rate, the number of job openings and other factors.”

As we’d expect with any major policy proposal there will be plenty of analysis, criticism, and second guessing over the next several days as Congress gets set to reconvene after the Easter/Passover break. But what’s crystal clear is that two traditionally adverse interest groups have hammered out an agreement which trumpets — indeed screams — that America needs comprehensive immigration reform.

The fact that business and labor could come together on a well-designed guest worker program — perhaps one of the most contentious issues in the immigration reform debate — means the energy is there, the desire is there, and the need is there for immigration reform. And if the AFL-CIO and U.S. Chamber of Commerce can find common ground when an agreement seemed all but impossible a few days ago, then Democrats and Republicans in Washington can too.

Follow me on Twitter: www.twitter.com/DavidLeopold

Filed under Business Immigration, DACA, Deferred Action, Dream Act, Immigration Reform, Politics

Cowardice or Courage? The Republicans’ Choice on #Immigration

February 8, 2013 Leave a comment

Originally posted on Huffington Post

There are two types of Republicans on Capitol Hill; those who are willing to forge a consensus on immigration reform for the good of the country, and those who are not. Both were on full display this week.

In a House Judiciary Committee hearing Tuesday Republican lawmakers grilled San Antonio Mayor Julian Castro (D-TX) with questions calculated to suggest that the Democrats’ support for a path to citizenship for undocumented immigrants is tantamount to opening up the nation’s borders to anyone who wants to come here. “Do you believe there should be a limit to the people brought into the United States?” Representative Steve King (R-IA) sarcastically asked Castro. Rep. Bob Goodlatte, the chair of the committee, went so far as to characterize a “pathway to citizenship for those not lawfully present in the United States” as an extremist position. And it got uglier. “Whatever else we disagree on” declared Rep. Spencer Bachus (R-Ala.), “I think we can agree that that’s a more toxic and contentious issue — ramming [through] full amnesty.”

Never mind that a recently released Gallup poll found that Americans widely support a broad overhaul of the dysfunctional immigration system, including a pathway to citizenship for the 11 million people living in the U.S. without lawful status.

Worse than the GOP grandstanding were the witnesses called to back up the Republicans’ rhetoric, including Chris Crane, president of the ICE agents’ union. Despite his union’s affiliation with the AFL-CIO which supports immigration reform, Crane has been a vocal opponent of President Obama’s use of prosecutorial discretion to prioritize the deportation of immigrants who pose a threat to American citizens. In his testimony Crane made the outrageous claim that the administration has ordered ICE agents not to enforce the immigration law. Perhaps Crane should tell that to the 1.5 million people who have been deported since Mr. Obama took office, including hard working fathers and mothers of U.S. citizens whose only crime was to dream of a better life for their children. It’s a good thing for Mr. Crane that he did not testify under oath.

Elsewhere in Washington, another House Republican offered a very different message. In a speech before at the American Enterprise Institute, House Majority Leader Eric Cantor (R-VA) told his audience that he supported a pathway to citizenship for DREAMERs, a guest worker program, increased employer verification, and more visas for science, technology, engineering and math graduates. Like other Republicans who have re-calibrated their views since the November elections, Cantor spoke of fixing the broken immigration system without peppering his speech with incendiary terms like “illegal alien” or “amnesty”.

Unlike his colleagues on the Judiciary Committee, Cantor had the guts not to fall back on what Greg Sargent of the Washington Post termed “rhetorical gimmickry,” which, simply put, amounts to cynically conflating complex issues to scare the public into opposing immigration reform. Cantor struck a tone similar to other Republicans, such as Senators Marco Rubio, Lindsay Graham and John McCain who have recognized that the American people deserve better than a mean spirited debate chock-full of racially charged phrases like “illegal immigrant” and limited to inhumane policy proposals like “self-deportation”. Cantor, who has never before supported giving DREAMERs a shot at citizenship, appears to understand that it will take political courage on both sides of the aisle to construct an immigration policy designed to keep America’s borders secure, its families safe and together, and its businesses globally competitive.

The good news is that Cantor is not alone. Others in the House GOP are evolving on immigration reform. While he has not yet followed Cantor’s lead and endorsed the DREAM Act, Speaker John Boehner (R-OH) has recognized that the busted immigration system must be fixed. Other Republicans in Congress have joined a bipartisan group quietly working to forge an immigration reform plan.

Hopefully the GOP antagonism on display during Tuesday’s House Judiciary hearing represents an increasingly rare breed of Republican on Capitol Hill. Immigration reform advocates may not agree with everything Republicans like Cantor, Rubio, Graham or McCain propose. But they should applaud them for having the sense to contribute to the national conversation on immigration reform.

The nation is presented with an historic opportunity to finally build an immigration policy worthy of America’s proud history as a nation of immigrants. And the Republicans in Washington have a choice. They can continue to cower in the dark corner of the restrictionist fringe, eschewing any positive policy proposal as an unacceptable “amnesty” and parroting the same old racially charged nativist talking points. Or they can follow leaders like Eric Cantor and others who are now thinking about what is best for their party and, more importantly, for the country.

Follow David Leopold on Twitter: www.twitter.com/DavidLeopold

Filed under Business Immigration, Dream Act, Immigration Reform, Politics, Prosecutorial Discretion Tagged with ,

Pelta’s Top Five (plus) Suggestions for USCIS

January 12, 2012 Leave a comment

Originally posted on the AILA Leadership Blog

By Eleanor Pelta

I’m an inveterate list maker. I make lists of everything, on everything. Slips of paper containing household to-do’s, a notebook I carry around with me with an office to-do list, a separate notebook for AILA to-do’s. I even make to-do lists for my husband and children, which I am confident they greatly appreciate. On my iPhone I have shopping lists, lists of books I want to read, restaurants I want to visit, movies I want to see, friends I need to catch up with. What is scary is that I have even contemplated making a list of the lists I have to write, but fortunately I’m not quite there yet.

January is the month for those of us who are hard core list makers. It’s the time for reviewing what worked and didn’t work over the past 12 months and making our aspirational lists for the upcoming year—our resolutions. Year-end top ten lists also abound, with everything from top ten movies, books and music to top ten worst movies, books and music.

Sometimes I think government agencies ought to make resolutions and top ten lists too, reviewing their best and worst moments, decisions and policies of the previous year and brainstorming on ways to improve in the coming year. In that spirit, I decided to make and share a Top Five list for USCIS. (I certainly hope they welcome my passion for list-making as much as much family does.)

So without further ado, and in no particular order, here is my list of–

Top Five Things USCIS Can Do to Become More Business Friendly, without Congressional Action

• Change the initial period of stay for a new office L transferee from one to two years.  All businesses—especially emerging businesses—need a modicum of predictability in government decision-making in order to ensure stability of operations. Allowing an intracompany transferee two years to settle into the U.S. and get a business running affords sufficient time for the individual to focus on the growth of the business, finding customers and making new hires without having to worry about whether his or her stay will be renewed. We have seen too many examples of new businesses that are closed –many resulting in lost U.S. jobs—just when the business is beginning to take off, because a new office extension is denied after one year. A two year period is a much more reasonable period for a business to establish viability and for the agency to evaluate that viability.

• Do not require a new H-1B petition to be filed by an employer every time a new LCA is filed for a change in job location. If an H-1B employer remains the same, and an H-1B position remains the same, an employer should not have to file a new H-1B petition each and every time the employee changes locations, as long as there is a Labor Condition Application (“LCA”) filed for that position for the new location. On the LCA, the employer has made promises to abide by the Department of Labor regulations regarding employment of an H-1B worker in the position at the specific worksite, and the Department of Labor has the power to enforce those promises. This is a gray area. Statements made by agency officials in the past have led many of us to believe that an amended petition is not required, but some adjudicators think otherwise. Requiring the employer to file an H-1B amendment in addition to the LCA is time consuming and wasteful of a company’s money, especially considering that, in order to employ the worker at the new site in any reasonable amount of time, the employer must assume the additional expense of premium processing. It also leads to a high degree of unpredictability and instability for the employer, in the event that the adjudicator of the H-1B amendment disagrees with the prior H-1B adjudication and decides that the worker is not eligible for H-1B status.

• Once an employer has had a certain number of verified site visits, stop! I understand the reasons for the site visit program, and generally, H-1B site visits should not be a problem for the compliant employer. But USCIS should understand that site visits are disruptive of the normal workday and they interrupt productivity. Several of my clients have had repeated site visits, each of which has resulted in a successful verification of information in an H-1B petition. It seems to me that once an employer has gone through a certain amount of successful site visits—say, five, perhaps—they should be placed on a USCIS “good guy” list, and the site visits should stop, at least until there is really a basis to resume them. This is a win-win for the agency and the business world, because it rewards compliant employers and allows them to go about their business, and it frees the fraud inspectors to move on to employers whose practices may deserve more serious attention.

• Revamp the biometrics process. Find a way to re-use biometrics for benefit applications filed within a specific period of time. Set up biometrics appointments up front, at the receipt stage, for internationally mobile lawful permanent residents and their family members who are applying for re-entry permits. This will avoid the inconvenience and often very high business expense of requiring them to return to the US for fingerprinting after being assigned temporarily abroad.

• Promulgate a regulation requiring the Administrative Appeals Office (AAO) to adjudicate an appeal of a benefit denial within a reasonable amount of time. Especially in the context of nonimmigrant visa denials, an appeal should not take more than 30 days. The AAO will never be a meaningful route of redress for employers who file nonimmigrant petitions for key workers with an average processing time of almost two years for H and L appeals. Most employers with denied nonimmigrant visa petitions will undertake the additional expense of re-filing the petition or pursue other nonimmigrant options rather than file an appeal, even when they believe that the denial was legally erroneous. When petitioners decide to leave unresolved legal issues on the table and walk away from a denial, this severely diminishes the AAO as a significant player in the development of legal jurisprudence in the immigration field.

OK, five was a nice number for this blog, but I can’t resist. Here’s a sixth:

• Address—quickly and effectively—the growing incidence of Requests for Evidence and denials in the nonimmigrant visa extension context. Where all of the initial elements of eligibility for the benefit have either stayed the same or improved, there should be no reason for a Request for Evidence or a denial unless the initial decision was an erroneous one. But we are seeing too many instances of denials on extensions to believe that each one of these involved an erroneous initial determination. While petitioners seeking an extension for an employee must often re-submit the same evidence to support an extension as they submitted for the initial determination, adjudicators who are about to issue a request for evidence or a denial should be required to access and review the original filing before doing so to determine whether there has been a material change in eligibility since the first filing, or a legal error was made in the initial approval. While employers understand that they may have to send in the same paperwork twice in order to get an extension, they have a right to expect adjudicators to respect and support each other’s prior decisions in a particular case. Again, this is key to stability and predictability for businesses that rely on foreign talent.

Of course I have more than just six ideas (ideas number 7 et seq are on another list . . .) but I thought I would just start with these. I welcome other AILA members to come up with their own lists and share them with me.

Filed under Business Immigration

Senator Grassley: The Puppetmaster?

January 10, 2012 Leave a comment

Originally posted on the AILA Leadership Blog

By Eleanor Pelta

Over the past few days the lyrics of an old classic song by Buffalo Springfield have been running through my head: “There’s something happening here, What it is ain’t exactly clear . . .”  The reason I can’t seem to shake this tune loose has to do with a series of articles published last week in The Daily, an e-newsletter, claiming that USCIS adjudicators are approving immigration benefit petitions under undue pressure from “higher ups” at USCIS headquarters, thereby compromising national security. The articles were based upon an unreleased report by the Department of Homeland Security Office of Inspector General. The report was released today, and, to say the least, has me, and many of my colleagues in the immigration bar, scratching our heads over how there could be such an enormous gulf between the assertions in the report and what is actually happening to our clients—both employers and families—who are filing petitions for immigration benefits with USCIS district offices and service centers.

The DHS OIG report discusses four aspects of USCIS decision-making. They are: (1) the ability of USCIS immigration services officers (“ISO’s”) to detect fraud and refer cases for further evaluation for possible fraud; (2) the slow implementation of a new ISO performance metric which would prioritize quality of decision making as well as national security and fraud detection; (3) inappropriate influence of USCIS headquarters employees and outside parties on USCIS decision making, and; (4) the standard of proof in adjudicating petitions.

This commentary is not intended to be a full-blown analysis of the report, but there are several noteworthy aspects. First, the report states twice—once at the very beginning and once at the conclusion—that the OIG undertook the review and issued the report at the express request of Senator Grassley. Interestingly, the report cites no other basis at all for the initiation of this particular review of USCIS decisionmaking. It does not appear that any other member of Congress joined Senator Grassley in his call for this study, and the report cites no particular groundswell of concern over our national security or infiltration of the U.S. by perpetrators of fraud that would impel an investigation. In fact, quite the opposite: the report states that “[g]eneral employee concerns about the impact of production pressure on the quality if an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats . . .” and that even employees who criticized USCIS management “expressed confidence that USCIS would never compromise national security in a given case.”

Equally remarkable is the small amount of actual data upon which the report’s conclusions—some of them quite inflammatory—rest. The report acknowledges that 18,000 USCIS employees and contractors process applications for benefits at four service centers, 26 district offices and 81 field offices. But the report is by and large based upon responses from interviews with 147 managers and staff as well as 256 responses to an online survey. Assuming that those who were interviewed were different individuals than those who completed the online survey, that is a total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS.  I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever.  To paraphrase something my mother might say, “From this you can make a report?”

As for the assertions and conclusions themselves, they appear to run the gamut from the common-sensical –such as the recommendation that ISO’s need more training in fraud detection ( we didn’t need a report to tell us that many adjudicators cannot tell the difference between a small business and a fraudulent one) to risible (such as the statement that the AAO –which is currently taking an average of 22-23 months to review an H-1B or L denial—is a truly viable appellate body. Haven’t they ever heard the saying “Justice delayed is justice denied?”)

The OIG report’s focus on fraud is extremely troubling, given the fact that the introductory comments essentially admit that the evidence considered in the report does not support a finding of a systemic problem with fraud, and in the context of statistics from the Fraud Detection and National Security (FDNS) Directorate—numbers which are conspicuously absent from the OIG report. In FY2010, for example, out of over 15,083 cases reviewed by Center Fraud Detection Offices at CSC and VSC pursuant to the H-1B site visit program, only 197 (1%) were referred to FDNS IO’s as fraud/lead cases. So where is the factual basis for the obsession with finding fraud?

Equally troubling is the report’s discussion about the new fraud-driven performance metrics being implemented by USCIS, which, according to the OIG, are being developed too slowly. The report states that in FY2011, 50% of an ISO’s overall performance rating was based on fraud detection and national security identification and the other 50% of the rating is based on quality and accuracy. While the OIG report desires that this performance system be implemented more quickly, I have very serious concerns about a performance rating system that seems to incentivize adjudicators for finding fraud. Moreover, how does this system reward adjudicators for applying immigration law and regulations appropriately, and ensuring that their adjudications implement the original purposes of the various benefit categories—from uniting families to bringing foreign expertise to the U.S.? How does the system incentivize adjudicators to correct errors and take responsibility for their actions and decisions?

Moving from the troubling to the outright ludicrous, the OIG report suggests that ISO’s approve too many cases, issue too few Requests for Evidence, and succumb to pressure from USCIS headquarters and outside groups—including AILA, according to one survey respondent. But again—the report bases these conclusions on anecdotes and commentary that have no statistical value, and the experiences of AILA members simply do not bear out this assertion. Quite the opposite is true.

In the family context, members report that marriage-based petitioners are often treated like common criminals and separated in a perverse edition of The Newlywed Game, where forgetting what color the spouse’s toothbrush is or how many slices of bread the toaster takes can have disastrous consequences for an American family. Talk to any attorney who has filed an extension of a new office L petition recently and you will likely hear about a massive, multi-page “in-terrorem” RFE asking for documents that are either irrelevant or have already been submitted, or a denial that is costing jobs—particularly from a Service Center located in a state that cannot afford to shutter a business or add more U.S. workers to the rolls of the unemployed. Where is the discussion about the impact of erroneous decisions on families or the U.S. economy?

Let’s face it. It is far more accurate to call this “The Grassley Report” than it is to call it the OIG Report. No one else asked for this report, and the conclusions are clearly colored by Grassley’s well-known jaundiced view of the immigration system, and his unsupported fear that fraud lurks around the corner of every petition.  That the report is an elaborate set up to engineer Congressional hearings is nowhere more evident than in the Report’s final conclusion calling for Congress to change the evidentiary standard of review from “preponderance of the evidence” to “clear and convincing evidence.”  The sad truth is that in reality, many adjudicators are already applying this standard de facto. Grassley would like to see the law changed to support what many adjudicators are already doing, rather than requiring the adjudicators to follow the law as it stands now.  And this from a Senator who thinks there is a lack of integity in USCIS decisionmaking.

The Daily, in its series that preceded the release of the report, seized upon what it considered to be the “sexiest” parts –claims of internal pressure to approve cases and allegations of wrongful interference in one particular case by the former USCIS Chief Counsel—and punctuated its articles with provocative visuals such as the series of “Approved” stamps on a swath of Nonimmigrant Visa Applications (adjudicated by the Department of State, actually, not USCIS, but who cares about that minor detail.) The Daily is part of the Murdoch publishing empire, and frankly, I did not expect or require them to produce an even-handed analysis. I think, however, that we all have the right to expect a much higher level of public responsibility from the DHS Office of Inspector General.

Filed under Business Immigration, Enforcement

Newt Gingrich’s Immigration Plan: The Devil Is In The Details

December 12, 2011 Leave a comment

Originally posted on the AILA Leadership Blog

I’d like to think that Newt Gingrich, the current GOP front runner, has come out squarely in favor of a pathway to citizenship for the millions of undocumented immigrants in the U.S. Not because I support his presidential candidacy, but because rejection of mass deportation as a solution to America’s broken immigration system raises the level of the national debate about immigration. At least he’s not ginning up the same old sound bites about securing the border and building fences.

But, the devil is in the details. Unfortunately, Gingrich’s proposal falls far short of what is needed to fix the broken immigration system. In fact, his idea would lead to the mass deportation of millions of people and the demise of scores of American families.

The cornerstone of Gingrich’s plan is the so-called “citizen review panels” which would consider whether an undocumented immigrant’s personal circumstances merit a reprieve from deportation. Gingrich likens the idea to the draft review boards of the World War II era.

But listening carefully to Gingrich it becomes clear that under his plan very few undocumented immigrants would even qualify to go before the review panels. Only those that have been in the U.S. for more than 25 years would be considered, even if they have compelling equities such as U.S. citizen relatives, a record of paying taxes, good moral character, and a consistent work history.

A recent report by the Pew Hispanic Center shows that of the approximately 12 million undocumented immigrants in the U.S., only 35% have been in the U.S. 15 years or more—even less have been in the country for more than 25 years. That’s more than 7.8 million people who, according to Gingrich, would be targeted for what he calls “dramatically easier” deportation. It’s not clear what Gingrich means by that ominous phrase, but I imagine it doesn’t include much due process and fairness.

Yet Gingrich’s proposal shines when compared to Mitt Romney’s. Romney suggests that undocumented immigrants, all 12 million of them, should turn themselves in, be given a transition period to get their affairs in order, and self-deport. It’s obvious that Romney hasn’t a clue when it comes to fixing the broken immigration system. Romney bases his proposal on the idea that the undocumented—many of whom have close family ties to America—can simply go home, get in line, and return legally. He obviously doesn’t understand—or worse, doesn’t care—that the broken immigration law includes a myriad of daunting legal obstacles which prevent undocumented immigrants from returning to America and their families for at least a decade or more. His proposal is as ridiculous as it is unworkable.

On the other hand, Romney and Gingrich both argue forcefully for an immigration policy that will attract the best and brightest to America—the innovators, entrepreneurs, and scientists. On this point—although neither would likely admit it—both GOP front runners agree with President Obama. Recalling a time when America opened its doors to highly skilled immigrants to shore up its competitive edge, President Obama has called for innovation, education, and rebuilding of America’s infrastructure. This  necessarily implies an immigration policy that keeps America open for business.

But what neither Gingrich nor Romney seems to get is that high skilled professionals and creative entrepreneurs won’t come to the U.S. if we do not fashion an immigration policy that restores and protects due process. Just ask the scores of business people and scientists who have been stymied by an overly restrictive immigration bureaucracy or targeted for special registration and prolonged security checks over the past decade. (Note: you may need to contact them via email or Skype because many have immigrated to other, more welcoming, countries).

The subtext of the current immigration debate is that undocumented immigrants won’t do what they should to gain lawful immigration status. This assumes that compliance with the immigration law is as easy as filling out a passport application at a local  post office. What none of the candidates seem to understand is that under the current law there is simply no way for most unauthorized immigrants to comply, as much as they might want to, whether they remain the U.S. or go back to their native countries.

Nevertheless, Gingrich’s proposal, as deeply flawed as it is, recognizes that wholesale removal of 12 million is not a solution.  And, if nothing else, that position is a welcome addition to a Republican immigration debate that has thus far been limited to little more than sound bites about border security, boots on the ground, and fences.

Filed under Business Immigration, Dream Act, Enforcement, Immigration Reform

Iowa Poll Shows Likely Caucus-Goers Favor Immigration Solutions, Not Pat Sound Bites

December 7, 2011 Leave a comment

Originally posted on the AILA Leadership Blog

Remember Pete Wilson? JD Hayworth? Tom Tancredo?

That’s what I thought.

These guys are just a sample of politicians whose anti-immigrant agenda played a big part in the demise of their political fortunes.  And the list continues to grow.  Just ask former Arizona State Senator Russell Pearce, author of Arizona’s SB1070, the “show me your papers” law, who was thrown out of office last month by his own constituents.

So it comes as no big surprise that some of the most conservative voters in the country—Iowa caucus-goers—are, according to a report in NPR, “open to policies that help foreign-born young people educated in the U.S. to enter the workforce, as well as those that help companies hire seasonal and permanent employees for vacant jobs Americans are not filling.”  They also strongly support increasing opportunities for highly-skilled legal immigrants and entrepreneurs to come to the United States.

When you look at these numbers you begin to understand why GOP presidential hopeful Newt Gingrich declared his support for a more humane immigration policy—one which includes a pathway to lawful compliance for the millions of undocumented foreign nationals in the US.

Unlike Mitt Romney, his chief rival for the nomination who continues to pander to the restrictionist fringe, Gingrich’s remarks on immigration have been deftly aimed at the centerist—dare I say more reasonable—Republican voters.  Gingrich understands that America’s economic and social future depends on an immigration policy which attracts the best and brightest to America’s shores and which includes a common sense, humane approach to bringing the scores of undocumented workers out of the shadows and into the sunshine of American life.  In a GOP primary that has offered little more than inane blabber about “amnesty”, “fences”, and “boots on the ground”, Gingrich offers a refreshing perspective.   Though his proposal is still very flawed, he is challenging his party and Republican voters to consider solutions to the nation’s immigration problems rather than pat sound bites.

How then does this explain the Rick Perry’s fall in the polls? Didn’t his moderate approach to immigration, including his support for instate tuition for undocumented immigrants, severely damage his presidential campaign?

No, not so much.

The collapse of Perry’s candidacy has more to do with his debate gaffes and other missteps, not his stance on immigration. Simply put, Perry lost his front runner status because he was not ready for prime time, not because of any one particular issue.

The Iowa poll shows that Americans—liberal, moderate, and conservative—overwhelmingly support a common sense approach to immigration.  This is consistent scores of other studies conducted by pollsters over the years.  American voters long for a modernized immigration system that will create jobs for American workers, protect American families, and restore American due process and fairness.

Politicians who choose to ignore this do so at their own peril.

Filed under Business Immigration, Dream Act, Immigration Reform

The Cost Of Doing Business Under Alabama’s Immigration Law

November 23, 2011 Leave a comment

Originally on the AILA Leadership Blog

You can’t make this stuff up.

A foreign executive from Mercedes-Benz gets arrested in Alabama and charged criminally under the state’s new immigration law. Was he alien smuggling? Drug trafficking? Committing a violent crime?

Nope. He left his visa in his hotel room.

Under Alabama’s new immigration law that’s a crime. The 46-year-old German manager—or, as they call him in Alabama, the suspected criminal—was quickly thrown into jail by local police when he couldn’t produce his immigration papers after he was stopped on his way to the Mercedes-Benz plant in Vance, Alabama. Imagine the scene at the Mercedes-Benz headquarters in Germany as the top brass scurried about trying to find someone to post bail for the luckless manager who suddenly found himself sitting in some rural Alabama lock-up.

Much has been written about the horror of Alabama’s hate-infested immigration law and how it has wreaked havoc upon the state. There was the heart wrenching report of the 4th grade Latina girl who was asked by her teacher to produce her immigration papers, the photos of ripe produce left to rot in worker-less Alabama fields, and the media reports of the difficult and dirty jobs left open by the flight of undocumented workers.

And despite the unquestionable havoc the law has wreaked upon the good citizens of Alabama, the lobbyists and politicians who enacted it have had the audacity to suggest that the chilling due process violations, the acute shortages of essential workers, and the climate of fear it has created  throughout the state is merely a temporary bump on the road to an illegal alien free Alabama. But the fundamental economic assumption upon which they have pushed their mean spirited law—that U.S. workers will fill the void created by the fleeing immigrants—has proven false. In fact, as was reported recently in Bloomberg Businessweek, the exact opposite is true. In the wake of the mass exodus of undocumented immigrants from Alabama, many difficult, unpleasant jobs—the tough and dirty ones like picking vegetables, gutting fish, washing dishes, and cleaning beds—remain open in Alabama, unfilled by American workers.

In this economy—or in any economy for that matter—most states do whatever it takes to attract economic development. That’s why, back in 1993 when Mercedes-Benz announced it would open a plant to build sport utility vehicles in their state, Alabama officials rejoiced. Since then other foreign automakers have followed suit including Honda, Toyota, and Hyundai, fueling Alabama’s economic growth.

But would Mercedes-Benz or any other foreign company make that same decision today? What were the Alabama politicians thinking when they enacted this law? Did they really think they would secure Alabama’s economic future by passing a spiteful immigration law which, among other things, so easily puts a foreign corporate manager at risk of arrest and prosecution during a business trip?

Alabama development officials beckon employers to the state with an online brochure promising a “favorable business climate”, “effective workforce training”, “attractive tax incentives”, and “excellent logistics”.

What about “reasonable bail”?

Filed under Business Immigration, Dream Act, Enforcement, Immigration Reform, Uncategorized

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