By Gary Endelman and Cyrus D. Mehta

There is growing Islamophobia engulfing the country combined with a rise in xenophobia,,8599,2011798,00.html. The Islamophobia has been unleashed as a result of the unfortunate controversy over the Islamic center and mosque that will be built within two blocks of Ground Zero. Much has been written about this controversy, but there has been scant commentary about its impact on immigration and immigrants. It is time to step into this lacuna, which we do so in this blog post to link this Islamophobia to the xenophobia against immigrants. We are especially motivated to write after an immigrant Bangladeshi cabbie in New York last week was almost stabbed to death after the passenger, his assailant, realized he was a Muslim. More recently, arson has been suspected at a proposed construction site for a mosque and Islamic cultural center in Murfreesboro, Tennessee. Strangely, anti-Islamic sentiment, which was largely absent after September 11, has suddenly flared in New York City after the controversy surrounding the proposed Islamic center, even though two strip clubs, liquor stores and criminal defense attorneys who represent suspected terrorists thrive within two blocks of the WTC site, . Ironically, two mosques have always existed in the vicinity for years and not a word was said about them.

An anti-Islamic sentiment seeped into immigration enforcement policy immediately after the September 11, 2001 attacks. Non-citizens from Muslim countries were rounded up, and when they could not charge them with links to terrorism, they were detained and deported in secret for immigration violations unrelated to terrorism. In late 2002 and early 2003, the immigration agency, under Attorney General Ashcroft, and his lieutenant Kris Kobach (who has also helped draft Arizona’s SB 1070), invented Special Registration to target only males from countries with mainly Muslim populations. They were required to report within a short time frame or face both immigration and criminal consequences. Those who faithfully reported, thinking they were helping law enforcement, but were found to have immigration violations, were quickly put in removal proceedings. Although more than 80, 000 males reported for Special Registration, no one was caught for terrorism. But over 13,000 men were put in removal while their wives, sisters and daughters were not. The program was a spectacular flop, a waste of resources for the immigration agency and tax payer, and most problematic of all, it antagonized immigrant communities who trusted that the government was neutral even after the September 11 attacks. Even though overt immigration polices against Muslims were disbanded, one still could not help notice the occasional visa applicant from a Muslim country not being approved for a visa or being denied naturalization for a flimsy reason.

But all this pales in proportion to the recent hate and invective we have see against Muslims after political leaders such as former Alaska Governor and Vice Presidential candidate Sarah Palin and former House Speaker Newt Gingrich, have made political capital of the mosque near Ground Zero controversy in the Summer of 2010. Gingrich has even equated Islam to Nazism, forgetting that those who caused the September 11 attacks hijacked Islam in the same way as the pastor of a Christian church in Florida has just hijacked Christianity by organizing a Koran burning day on September 11, 2010. Also note the nauseating description of Islam by Franklin Graham on national television calling it a devilish faith and his discussion of the “Muslim seed” of Obama.

Islamophobia is not growing in a vacuum and cannot be understood or appreciated without a reference to the pervasive economic anxiety gripping this nation and others in the developed world. It is the dramatic difference in economic conditions that accounts for the upsurge in Islamophobia now and its relative absence at the time of 9/11.This is not strange at all. Remember when Hitler came to power? The link between xenophobia and economic anxiety is a global rather than merely an American phenomenon, A dark
tribalism has also engulfed Europe, with Switzerland constitutionally banning minarets and France outlawing the burqa, Migration itself is a global phenomenon and no country can frame immigration policies purely in a domestic context without reference to this wider movement of peoples across national boundaries. This is particularly the case throughout the developed economies of Europe, Japan and the United States where the population is aging, birth rates are dropping and only immigration can supply sufficient workers young enough to support complex and costly social systems. However, the very dependence on such migration in a time of economic anxiety also fuels a latent but increasingly emergent social dislocation, a sense that cultural realities are changing in a way that seems both menacing and hard to understand. This is what you see in the many tea party rallies when people bring signs saying they want to take their country back. Once again, this is an international problem. Even countries like the Netherlands that have long and proud traditions of humane immigration policies are changing in response.

The link between immigrants and radicalism goes back to the earliest days of the Republic. Federalists roundly condemned French immigrants as dangerous Jacobins and pressed President John Adams to sign the Alien and Sedition Acts in 1798 as a way to turn back the rising tide of Jeffersonian democracy. The nativist appeal of the Know Nothing movement in the 1840’s and 1850’s was fueled, in large measure, by the economic anxiety that swept through the industrialized North, especially among working class voters most fearful about competition for low-wage jobs that the enormous wave of recently arrived Irish immigrants presented. Throughout our history, the tenor of our immigration laws reveals a great deal about the national mood. The adoption of the first immigration restrictions in 1924 arose out of the disillusionment with foreign entanglements in reaction to the First World War. After the Pearl Harbor attack on December 7, 1941, 120,000 people of Japanese American ancestry were kept in internment camps from 1942 to 1946 (and approved by Cal. AG Earl Warren of all people!), which illustrates how the scapegoating of immigrants can come back to eviscerate the rights of citizens as well, The numerous ideological exclusionary grounds in the 1952 McCarran-Walter Act, unsuccessfully vetoed by President Truman, spoke of a frightened nation in the grip of Cold War hysteria. The abolition of the national origins quota in 1965 should properly be considered one of the hallmark civil rights measures of the Great Society. Passed the same year as the Voting Rights Act and only a year after the 1964 Civil Rights Act, the 1965 immigration law was the product of a confident and prosperous nation ready to embrace the world. The American Competitiveness in the 21st Century Act, passed at the peak of the boom in 2000, displayed an economic vitality whose expansion seemed to know no limit. The Schumer assault on H/L fees against companies that hire more than half their work force on H-1B and L visas, mainly Indian IT companies, most recently speaks of a frightened people who feel that they can no longer compete and worry that their time has past.

In light of this disturbing trend, noted columnist Tom Friedman in a recent New York Times Op-Ed best explains why it is important from a US immigration policy perspective to support the building of the Islamic Center, which will essentially be a 13 story building taken up by an auditorium, pool, gymnasium, offices and an exhibition space:

That resistance to diversity, though, is not something we want to emulate, which is why I’m glad the mosque was approved on Tuesday. Countries that choke themselves off from exposure to different cultures, faiths and ideas will never invent the next Google or a cancer cure, let alone export a musical or body of literature that would bring enjoyment to children everywhere.

When we tell the world, “Yes, we are a country that will even tolerate a mosque near the site of 9/11,” we send such a powerful message of inclusion and openness. It is shocking to other nations. But you never know who out there is hearing that message and saying: “What a remarkable country! I want to live in that melting pot, even if I have to build a boat from milk cartons to get there.” As long as that happens, Silicon Valley will be Silicon Valley, Hollywood will be Hollywood, Broadway will be Broadway, and America, if we ever get our politics and schools fixed, will be O.K.

We also admire Mayor Bloomberg for standing firm to his convictions and not retreating like other politicians have. How far will such a “no-mosque” zone stretch from the WTC site? Mosques that are being proposed in Staten Island, NY, and even as far in Murfreesboro, Tennessee, have met with virulent resistance. Even though President Obama admirably defended the right of Muslims to build the center, the next day he somewhat retreated by indicating that he was not commenting about the wisdom of building the mosque near Ground Zero. The following extract from Bloomberg’s no-compromise address at Gracie Mansion on August 24 is worth noting,

Nonetheless, it was not so long ago that Jews and Catholics had to overcome stereotypes and build bridges to those who viewed them with suspicion and less than fully American. In 1960, many Americans feared that John F. Kennedy would impose papal law on America. But through his example, he taught us that piety to a minority religion is no obstacle to patriotism. It is a lesson that needs updating today, and it is our responsibility to accept the challenge.

The ill-conceived sacrifice of religious toleration will neither ensure our safety nor promote our security. As Benjamin Franklin reminded the Pennsylvania Assembly in February 1775, those “who would give up Essential Liberty to purchase a little temporary safety deserve neither liberty nor safety.” Memoirs of the life and writings of Benjamin Franklin (1818). Think of this when former House Speaker Newt Gingrich pollutes the national discourse by comparing those who advocate the Muslim cultural center with Nazis. Remember well when Senator Schumer slanders major Indian IT giants like Infosys or Wipro and compares them to criminals who steal cars and chop them up for parts, Indeed, the very use of the term “job shop” suggests illegitimacy and even the concept of an “H-1B dependent” employer, not to mention the refusal of Congress to expand manifestly inadequate immigrant visa quotas, derives in no small measure from an unspoken but powerful bias against the “threat” of Indian migration. Popular frustration over federal inaction metastasizes into state-sanctioned bigotry like that directed against illegal immigrants through SB 1070 in Arizona.

Nativist excess has a price tag. Here is a great example. An Arizona construction company lost out on a major construction contract to expand LA international airport precisely because the LA City Council boycotted Arizona in the wake of their state immigration law. Moreover, the Immigration Policy Center reports that over 35,000 businesses in Arizona are Latino-owned and had sales and receipts of $44 billion in 2004, which employed over 39,363 people in 2002, the last year in which such data was available, “Gov. Brewer should keep in mind that, if significant numbers of immigrants and Latinos are actually persuaded to leave the state because of this new law, they will take their tax dollars, businesses, and purchasing power with them.”

The demonstrable willingness of our political leadership to demagogue against immigration contributes to a willingness in the body politic at large to equate all immigrants with a malignant terrorism against which our heralded commitment to diversity must and will give way. It is not that far a walk from portraying immigrants as the source of our economic malaise to depicting all Muslims as silent accomplices in 9/11. Nor is this the first time in our history when such a sad state of affairs has come to pass. As Abraham Lincoln wrote to his great good friend Joshua Speed on August 24, 1855:

Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.” We now practically read it, “all men are created equal except negroes.” When the Know-nothings get control, it will read, “all men are created equal except negroes and foreigners and Catholics.” When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty–to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

Yet, all is not lost for we have emerged from other times of torment and returned to what Lincoln’s First Inaugural so rightly and famously called “the better angels of our nature.”. In time, the fever will break and America will regain its moral balance. The crusade against Islamophobia and all forms of nativist excess can only be won if America once again believes in itself. F. Scott Fitzgerald had it right:

France was a land, England was a people, but America, having about it still that quality of the idea, was harder to utter…. It was a willingness of the heart. The Crack-Up (1936).

Follow the Money: What the OES Counts That You Can’t

By Gary Endelman and Cyrus D. Mehta

What is the main complaint against foreign workers? Simple: They undercut American wages. How do we know that one might ask? Well, critics like Senator Charles Schumer (D-NY), who unveiled and passed HR 6080, the Border Security Emergency Supplemental Appropriations Act of 2010, do not tell us but the government actually does have a well established program to measure all this called the Occupational Employment Statistics survey. The Occupational Employment Statistics (OES) program conducts a semi-annual mail survey designed to produce estimates of employment and wages for specific occupations, All you have to do is to pay the foreign worker, when filing either an H-1B or labor certification application, based on what the OES says he or she should be paid and you know why our economy is in the ditch. While an employer is free to challenge the DOL’s reliance on the OES with a private wage survey, such a challenge is often costly and time consuming. So, it seems that perhaps we might take a closer look at this OES survey to find out what it is all about. Then, so the argument goes, we will know why H and L visa fees need to be higher, why DOL needs to audit more labor certifications and why Congress should declare a moratorium on all immigration.

How does the OES define “wages”? Let’s take a look at the OES website,

How are “wages” defined by the OES survey?

Wages for the OES survey are straight-time, gross pay, exclusive of premium pay.
Included in the collection of wage data are:
· base rate,
· cost-of-living allowances,
· guaranteed pay,
· hazardous-duty pay,
· incentive pay, including commissions and production bonuses,
· on-call pay, and
· tips

Notice the inclusion of tips and incentive pay including commissions and production bonuses. These are obviously not guaranteed by their very nature. Now, this is passing curious since the Department of Labor PERM regulations bar consideration of such incentive compensation: “wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis.” 20 CFR 6456.20(c)(3). Nor is this contradiction limited to PERM We find it in the H-1B regulations as well, something that Senator Schumer probably knew but the rest of us perhaps overlooked: If you look at the 20 CFR 655.731(C)(2)(v) definition of “cash wages paid” for purposes of satisfying H-1B required wage, you see the following: “future bonuses and similar compensation…may be credited toward satisfaction of the required wage obligation if their payment is assured(i.e. they are not conditional or contingent on some event such as the employers annual profits)…” ( emphasis added). So using this definition, tips, commissions, and other forms of incentive pay could not be considered by the employer in demonstrating satisfaction of the required wage obligation even though OES considers them in setting the prevailing wage!

Well, what about fringe benefits? This is a way that employers reward performance without raising base salaries. Surely, DOL allows this you ask? Not so fast my eager young friend! In 1991, the Board of Alien Labor Certification Appeals (BALCA) decided a case styled Kids“R”Us, 89-INA-311 (Jan 28,1991). If you read this case,and you will doubtless want to after reading this blog, pay special attention to page 4 which talks about calculating the value of fringe benefits and relies upon Peddinghaus, 88-INA- 79 (July 6, 1988). The whole point is to allow a precise determination of how much the fringe benefits were worth- in contrast to OES acceptance of tips, bonuses and other incentive pay that cannot possibly be calculated with any degree of exactitude unless and until they are paid. Even if unique, fringe benefits must be guaranteed and cannot be based on contingent payments, such as bonuses based on profits or tips. In Kids”R”Us, the following benefits were brought forward by the employer as part of the salary:

· medical plan with HOM and Major Medical for which employee only paid $5 per week
· paid vacation
· life insurance
· stock options
· stock purchase program which company assisted by paying all brokerage fees and adding 10% to any employee purchase
· company paid profit sharing where employee had to pay nothing while company kicked in 8% into a retirement fund
· 401K where the company matched 1/2 of employee’s contribution

None of these depended upon corporate performance or profitability. They were not contingent compensation.The discrepancy between how the OES determines wages and how employers are allowed to do so is not a new controversy. Consider the following discussion between the American Immigration Lawyers Association and the Department of Labor from the last century:DOL/AILA Liaison Meeting Minutes (3/19/99)

Question: It is our understanding that the OES survey reflects “total compensation,” including incentive compensation and bonuses. We understand that the set of instructions sent with the questionnaires instructed participating companies to include items such as bonuses as part of the reported wages? Is this true? If so, does this not run contrary to the requirement that the “wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis.” 20 CFR 6456.20(c)(3). Similarly, does the Service Contract Act also report total compensation benefits? In general, may an employer include sign-on bonuses, incentive pay, transportation and relocation allowances, which are all, reported as income to the IRS, as part of the salary? It the OES wage survey definition of compensation includes incentive pay, should we not be citing surveys that report “total cash compensation” wages rather than the “base salary”?

Answer: USDOL indicated that if a guaranteed bonus was paid every year, it could be considered as part of the prevailing wage.Question kind sir: Do the companies that respond to the OES survey have to prove they pay a guaranteed bonus every year or any year for that matter? Fast forward a few years and we come another AILA-DOL discussion of OES wage methodology from March 22, 2001:

QUESTION: The OES survey includes the use of discretionary bonuses, including production bonuses, commissions, cost-of –living allowances and the like. The OES wage computations in OES do not comply with the definition of weighted average of the salaries of workers surveyed. OES does not obtain specific salaries for each worker but rather requests that employers identify how many employees fit into defined wage ranges. There are other flaws in the OES, including the fact that there are only two levels, and Level II has the same range for highly experienced workers and moderately experienced workers.

ANSWER: DOL is aware of the issues regarding the OES. The regs do not mandate it’s use, but it is the best that DOL has to offer. OES will not be changed in the near future, so we will all have to live with the status quo. The PERM proposal will address prevailing wages and AILA will have an opportunity to comment on this issue in that context. However, DOL is continuing to provide training to SESA’s on prevailing wage determinations and assessing employer-provided surveys.

What most attorneys practicing today do not realize is that the OES has only been applied to labor certification since General Administrative Letter 2-98 on October 31,1997. Before then, as us folks who have been in the practice for a few more years remember, the state workforce authorities ( SWA of blessed memory) conducted a customized wage survey for each employer. OES was never meant to apply to labor certification and always took incentive compensation into account because, for most wage settings, this is accepted as part of what workers really got paid. At the time, our eagle-eyed colleague Deborah Notkin wrote a prophetic article entitled Labor Certification Practice: Coping With GAL 2-98 and the Occupational Employment Statistics (OES) Program that appeared in the May 3, 1999 issue of Interpreter Releases. The clash between the OES and labor certification became more painful when the OES switched to the Standard Occupational Classification System in 1999. This is the same system that DOL uses today to determine prevailing wages. Listen to how it operates:

“In 1999, the OES survey began using the Office of Management and Budget (OMB) Standard Occupational Classification (SOC) system. The SOC system is the first OMB-required occupational classification system for federal agencies. The SOC system consists of 821 detailed occupations, grouped into 449 broad occupations, 96 minor groups, and 23 major groups. The OES survey uses 22 of the 23 major occupational groups from the SOC to categorize workers in 1 of 801 detailed occupations…he OES survey’s transition to the new SOC system, estimates are not directly comparable with previous years’ OES estimates, which were based on a classification system having 7 major occupational groups and 770 detailed occupations. Approximately one-half of the detailed occupations were unchanged under the new SOC system, with the other half being new SOC occupations or occupations that are slightly different from similar occupations in the old OES classification system.”

O*NET is based on the SOC system. It is the compressed nature of this system in its occupational categorization that often produces distorted wage surveys. Note when the OES began using SOC, not that far after GAL 2-98. It was only then that the SOC system acquired legal and logical relevance for labor certification.

So, if there is a double standard in the calculation of what wage should be paid, and if the OES system is used to penalize employers who have the temerity to file H1Bs and labor certifications when the methodology underlying the entire OES concept was never meant to apply to immigration in the first place, how in the name of Sam Adams and the Continental Congress did we wind up in this mess? For that, dear reader, you must endure a little history lesson. In 1993, Vice President Al Gore inaugurated the National Performance Review. From the point of view of labor certification, the impact of the National Performance Review was that the DOL, among other federal agencies, was asked to identify opportunities for reducing expenditures. The resulting savings would contribute to balancing the federal budget, which at that time was running heavily in the red. At the DOL, the labor certification program was a prime candidate for cutbacks. Being at the center of the labor certification process, the DOL experienced its artificiality and unreasonableness “up close and personal.” It would be only natural for budget officials and other high officials in the DOL to dislike such a program. With this background, the DOL inaugurated its re-engineering” initiative for labor certification in 1995. See Reengineering of Permanent Labor Certification Program; Solicitation of Comments, 60 Fed. Reg. 36440 (July 17, 1995) reported and reproduced in 72 Interpreter Releases 976,993 ( July 24, 1995).

The National Performance Review reported to the President in September 1995 that $223.8 million could be saved over five years in the labor certification program by “streamlin[ing] the alien labor certification process[,] by decentralizing authority to state employment agencies and automating form processing.” National Performance Review, Ch. 2, “Getting Results” ( Sept. 7, 1995) It described its proposal as follows:

“Streamline Alien Labor Certification: Streamline and speed up the [DOL’s] Alien Labor Certification process by decentralizing authority to state employment security agencies, consolidating DOL regional processing centers from 10 to four, and automating forms processing. Under this proposal, DOL will conduct spot audits of about 2 percent of its cases rather than review all state certifications. Also, states will be authorized to charge user fees to those few employers who use this service.” National Performance Review, “Appendix C: New Recommendations by Agency” ( Sept. 7, 1995).

The Clinton Administration reduced the size of federal civilian workforce by 426,200 positions between January 1993 and September 2000, shrinking 13 of 14 departments. From 1992 to 2000, the federal workforce was reduced by about 20 percent. . None of the proposed changes that the DOL outlined in the National Performance Review actually happened. What did happen was that funding for labor certification was reduced from $60 million in 1993 to $40 million in 1997. These cuts contributed to the National Performance Review’s aims, but none of the proposed reforms materialized. With the National Performance Review looking for federal programs to cut, the DOL’s Employment and Training Administration (ETA) requested the DOL’s Office of Inspector General (OIG) to conduct an audit of the labor certification program: “Since ETA requested the audit, we have launched our own reengineering efforts through the National Performance Review initiative to address program weaknesses and to achieve a more rational allocation of resources.” U.S. Department of Labor, Office of Inspector General, Office of Audit, Final Report: The Department of Labor’s Foreign Labor Certification Programs: The System is Broken and Needs To Be Fixed. Rep. No. 06-96-002-03-321 ( May 22, 1996). Herein lay a double irony: not only was the ETA asking for an audit that criticized the ETA, but the ETA felt alienated from its own roots because the ETA’s predecessor agency grew out of the Bureau of Immigration. Such cultural contradictions are the inevitable, though unintended, consequence of a system founded on a negative premise.

From 1992 to 2000, as a result of Vice President Gore’s National Performance review, the federal workforce shrank by about 20 percent, The Clinton Administration reduced the size of federal civilian workforce by 426,200 positions between January 1993 and September 2000, This was why GAL 2-98 came about, why the SWAs stopped doing wage surveys and the job of determining prevailing wages for labor certification cases went to Bureau of Labor Statistics that was already using OES for non-labor certification wage survey purposes. PERM today is the fruit of the Clinton Era emasculation of labor certification funding and is the perfect expression of a dysfunctional program whose internal contradictions have never been resolved. What began as a desire to reinvent government ended in the shot-gun marriage of OES and labor certification when the Department of Labor abandoned the very concept of a meaningful prevailing wage to the tender mercies of its critics.

The H/L fee hikes sponsored by Senator Schumer are a continuation of what Senators Durbin and Grassley began in 2009, namely to use the OES wage system as a way to punish employers for sponsorship of work visas. Under the Durbin- Grassley proposal (S. 887 ), an employer who transfers an L employee to the U.S. for a cumulative period of time in excess of over 1 year would have to pay the prevailing wage, for Skill Level 2 in the most recent Occupational Employment Statistics (OES) Survey. Incidentally, the Skill Level 2 requirement also applies to H-1B workers, and thus if someone is legitimately an entry level worker, and can qualify for the H-1B visa, Durbin- Grassley would still requires the employer to pay the higher level wage even though a U.S. worker in a comparable situation may command the entry level wage. The full text of S. 887 may be found here, The OES is not neutral. From the time of GAL 2-98 to today, those who seek to choke off employment migration to this country have consistently sought to expand its reach and impose ever more onerous conditions so that employers who had the temerity to file an application would think twice.

Moreover, when one thinks of OES, it should be in concert with the replacement of the DOT by O*NET with a dramatic collapsing of occupational categories and a downgrading of SVP quotients for many technical and scientific occupations that are the frequent subjects of labor certification. The end result of all this is artificially inflated wage determinations that must be paid by employers for less experience. We now have two forms of immigration restriction: numerical quotas set by Congress and qualitative restrictions applied by the DOL through the targeted deployment of administrative systems whose combined effect is to render successful immigration sponsorship more expensive, tedious and difficult. It would then be a mistake to believe that the world has not changed absent passage of CIR. In fact, the immigration calculus has shifted to a much less favorable posture so that legislative inaction has given way to administrative restraint.

There is another problem with the OES.The DOL violated the Administrative Procedure Act by adopting the OES system without providing stakeholders with the opportunity of notice and comment. Remember what BALCA said about attempts by DOL to make law through promulgating FAQs. In Matter of HealthAmerica, 06-PER -1 (BALCA July 16, 2006), the Board of Alien Labor Certification Appeals chastised the Certifying Officer’s reliance on FAQ No. 5:, : ” Whether FAQ No.5 provides persuasive authority depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements and all those factors which give it power to persuade… We find that FAQ No.5 imposes substantive rules not found in the PERM regulations, nor supported by PERM’s regulatory history, nor consistent with notions of fundamental fairness and procedural due process.” Cannot the very same things be said with regard to the decision to abandon SWA wage surveys and use OES? We think they can and, for this reason, the decision to change the way wage surveys were conducted for LC purposes without notice and comment is an APA violation and unlawful. This represented an adoption by BALCA of the standard of deference previously articulated by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Applying Skidmore deference, the weight accorded to such an administrative judgment “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. The failure of DOL to do any of this at the time they first applied the OES methodology to labor certification prevailing wage determinations following the promulgation of GAL 2-98 violated fundamental fairness and deprived DPL’s decision of Chevron-style deference. We concede that the DOL did follow APA when it promulgated PERM rules at 20 CFR 656. However, as noted above, these rules bar consideration of any form of incentive compensation. When confronted with this contradiction in the past, DOL has routinely claimed that it cannot control what BLS does Yet, facts are indeed stubborn things. Every time the DOL uses the OES to tell an employer what the wage should be, the DOL, is intentionally and consistently violating its own regulations which it cannot do under the Chevron test.

We propose that the best way to free up wages is to ensure that the worker is not held captive to the same employer for years. Once the H-1B worker arrives to work for the company that sponsored him or her, the requirement that a new employer again go through the same tedious application procedure be eliminated if the worker is in the same or similar occupation. Let’s free the H-1B worker to work for another company without the need to file a new petition or to even start his or her own company in the same occupation. Also, while this H-1B worker is being sponsored for permanent residency, he or she could be allowed to continue the green card process if working in the same occupation much sooner than the law allows presently. Presently, Section 204(j) of the INA only allows “green card” portability at the final stage of the process, when the adjustment application has been filed and has been pending for over 180 days. An Indian waiting in the EB-3 queue may have to wait for over a decade before being able to file an adjustment of status application. The law should be changed to make the H-1B completely portable following initial approval. Once this happens, an H-1B worker will be on the same footing as a US worker. The employer will have less of an incentive to keep captive an H-1B worker. The market will determine the wage to be paid to an H-1B worker who would have an easier access to another employer. If the H-1B visa becomes truly portable, the protection of the market, via occupational mobility, replaces the false protection of the LCA. Moreover, we also propose three possible ways to solve the OES problem, first urged by AILA in March 2001. In each case, the effect would be to ameliorate the artificial wage inflation now resulting from the allowance of incentive compensation and once again, as before the application of OES to immigration, restore the primary of market driven forces as the ultimate arbiter of salaries:(a) Back out all non-guaranteed calculations from the OES averages; (b) allow employers to include these same items in their wage offers for labor certification purposes; or (c) return to the pre-PERM era and allow variance in wage offers to bridge the gap between what OES defines as prevailing wage and what the employer can guarantee as base salary.

We know there is fear and loathing in the land for very good reasons. We know too that the misapplication of the OES wage methodology to immigration is not the whole problem or even most of it. Yet, it is key to what plagues our national conversation today for those who most loudly condemn substandard wages for foreign workers do not bother for a moment to acknowledge that those who decide these things are playing with the house’s money and a stacked deck. The most damning indictment against the Schumer Bill and the other manifestations of immigration protectionism is not that they will cost American job by inciting retaliation by our major trading partners, which will happen, or even that they promote a fortress American mentality at a time when our economic revival requires even greater integration into the global economy. Rather, it is that such misplaced antagonism rests upon an ignorance of history and serves more than anything else as an unspoken but undeniable admission that America’s best days are behind it. This is a lie that must not stand.


By Cora-Ann V. Pestaina

On August 19, 2010 USCIS held a stakeholders teleconference to provide much needed guidance on its implementation of Public Law 111-230 which was signed into law by President Obama on August 13, 2010 and will remain in effect until September 30, 2014. The panel included such recognizable names as Donald Neufeld. Although Public Law 111-230 increases H-1B and L-1 petition fees effective immediately upon enactment on August 13, 2010, USCIS will apply it to certain H-1B and L-1 petitions postmarked on or after August 14, 2010.

Essentially, Public Law 111-230 applies to employers who employ more than 50 employees AND have more than 50% of the workforce employed on H-1B, L-1 or on an employment authroization document (EAD) pursuant to L-2 status. Both full-time AND part-time employees must be counted and employers need only consider employees currently working in the U.S. Employers with employees on H-1B, L-1 or L-2 status, where the employees are constantly entering and leaving the US, should perform their calculation for purposes of Public Law 111-230 at the time of filing the relevant H-1B or L-1 petition. Public Law 111-230 only applies upon the petitioner filing its first H-1B or L-1 petition on behalf of the beneficiary. Accordingly, Public Law 111-230 does not apply when filing H-1B or L-1 petitions for extensions of stay by the same petitioner for the same beneficiary.

Several stakeholders had questions with regard to corporations with several subsidiaries each holding its own Federal Employer Identification Number. Stakeholders were concerned that depending on which corporation was used to perform the calculation, the employer could be subject or not subject to Public Law 111-230. USCIS offered no particular guidance on this except to point out that for the purposes of Public Law 111-230, it will use the definition of employer found at 8 CFR§214.2(h)(4)(ii) which states:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

Under Public Law 111-230, in addition to the filing fee ($320), the fraud fee ($500), the education and training fee (in the case of H-1Bs – $750 or $1,500) and the optional premium processing fee ($1000), affected petitioners must submit an additional fee of $2,000 if filing an H-1B petition and $2,250 if filing an L-1 petition. USCIS emphasized that it prefers a separate check made out to “Department of Homeland Security” for the required amount. Petitioners seeking guidance on what to write in the memo line on the check will have to wait, but can write “Public Law 111-230 fee” for now. In order to be consistent with the intent of the legislation, USCIS expects the fee to be paid by the petitioner.

USCIS stressed that petitioners who may have already submitted an H-1B or L-1 petition and think that the law may apply to them, should wait for a Request for Evidence (“RFE”). They will be given 30 days to pay the fee or provide evidence as to why they are not subject to the fee or the petition will be denied. USCIS assured listeners that an H-1B or L-1 petition would not be rejected for lack of this fee but would receive an RFE. Going forward, USCIS expects Petitioners who may appear subject to Public Law 111-230 (e.g. a dependent H-1B employer) to include an attestation along with its petition explaining why it is not subject to Public Law 111-230. Petitioner should include whatever evidence it deems appropriate along with this attestation. Soon USCIS will provide further guidance on what evidence it expects to receive.

USCIS is working on new Form I-129 which will include questions pertaining to this new law and will assist petitioners in determining whether the law is applicable to them. USCIS could not comment on any implementations of the law by the Department of State (e.g. re L-1 blanket petitions).


By Gary Endelman and Cyrus D. Mehta

Dear Senator Schumer:

We know that you and your colleagues with great aplomb approved a border security bill, H.R. 6080, that would provide $600 million in funding for putting $1,500 border security to prevent illegal immigration, which will be paid for by raising fees on certain H-1B and L-1 visa petitions. The hike in fees, $2,000 for an H-1B and $2,500 for an L-1, will be paid by a company that has 50 or more employees if more than 50% of these employees are admitted in H-1B or L status. Most of the companies that will face these punitive hikes will be Indian IT companies. The President signed the bill on August 13, 2010. What Indian IT consultants have to do with border security remains a genuine head scratcher. In a letter to U.S. Trade Representative Ron Kirk, India’s Commerce Minister Anand Sharma said the bill unfairly targets Indian companies and estimated it would cost the country’s firms an extra $200 million a year. “It is inexplicable to our companies to bear the cost of such a highly discriminatory law,” Sharma wrote. Perhaps the fact that these same companies subsidize US social security solvency to the tune of $1 billion per annum without any benefit flowing the other way might also raise hackles in Bangalore.

India bashing is a potent political strategy these days as you probably know. In the recent contest over the Democratic Party’s nomination for the Arkansas Senate seat held by your colleague Blanche Lincoln, business lobbyists funded controversial television ads attacking her challenger, Lieutenant Governor Bill Halter, for allegedly profiting from a software company that supposedly outsourced American jobs to India. (Halter denied the charge.) What did Senator Lincoln do? Take a listen:” With Indian music playing in the background, one of the ads featured several Indians thanking Mr. Halter for sending jobs to Bangalore. Although Ms. Lincoln condemned the ads as racially offensive, her campaign distributed mailers, emblazoned with pictures of the Taj Mahal, making the same charge.” . Of course, this will not prevent President Obama from visiting India this coming November to highlight its importance to the United States. Will there be room for you on Air Force One?

Hopefully, Senator, the Indian Government will not retaliate against your visa fee hike in advance of the President’s arrival. Consider for a mement a warning by Azim Premji, the executive chairman of Wipro, one of the companies you singled out in your bill:

“I think the United States must realize that today 60 to 70% of the growth of the revenues of large American companies comes from India and China. These are the growth markets. It’s a simple thing for our government to raise tariffs. It’s a simple thing for our government to say no American corporation will get central or state government contracts, or defense contracts. On the other axis, we’re so open to global corporations to bid on exactly the same terms as Indian corporations. You’ll get a spate of protectionism coming, I have no doubt. You can see it in China, but they do it very subtly. Nearly 55% of the economy of China is government.”

Senator, your 50/50 rule, which is modeled after what Senators Durbin and Grassley have long advocated,, could trigger a formal complaint by the Indian Government to the World Trade Organization on the grounds that the United States is failing to abide by its obligations under Mode 4 of the General Agreement on Trade in Services (GATS) that regulates services provided by “one Member through the presence of natural persons of a Member in the territory of any other member.” GATS Training Module: Chapter 1: Basic Purpose and Concepts, WTO Web site available at A recent study by the National Foundation for American Policy did not dismiss this possibility but expressed genuine concern that the United States would be deemed guilty of a restrictive trade practice, thus leaving us with the Hobson’s choice of revising our immigration laws or risking WTO discipline, not to mention a severe Indian response.
We all make our living in a global village, Senator, and your fee hike is a boomerang that is going to come back around to hurt the very workers you want to protect. That is why business leaders are muttering in their martinis. US India Business Council President Rom Somers speaks for many:

It is totally outrageous in this day in age, when the world is so interconnected by the Internet, that draconian measures would be floated by the US Congress that tarbrushes Indian companies as ‘chop shops’…Our companies are creating value around the clock thanks to tie-ups with India, keeping us ahead of the global competition…Cutting our nose off to spite our face by imposing restrictions on movement of high-tech professionals will hobble American companies’ ability to compete in the global marketplace,” he said….Value addition is being provided by Indian companies 12 hours a day, 7 days a week for US companies, complimenting the value being generated by the American work force. When our day winds down and our workforce shuts the lights off, the Indian workforce awakes for their morning to continue adding value,” Somers added.”

You might be interested to read a 2008 report from the US India Business Council concerning Indian investment in the United States. Covering 12 states, Indian corporate titans handed out paychecks to 30,000 Americans; the Tata Group, by itself, operated 16 businesses with 19,000 workers and an estimated total investment of $3 billion.

Senator Schumer, we are not sure whether you read our blog that we posted the night before you approved HR 6080 in the Senate on August 12, 2010,, where we reminded you that the use of pejoratives such as “chop shop,” or even “job shop” with regard to Indian’s crown jewel IT company, Infosys, were racist terms, which have been legitimized in public discourse much as racist terms found acceptance in the Jim Crow era. You clarified the next morning, August 12, 2010, that the use of “chop shop” was not appropriate, but then indicated that the more appropriate term ought to have been “body shop,” which continues to rub salt in the wound and demonstrates an ignorance of the very real value that firms like Infosys, Wipro, Tata and other smaller companies with similar business models bring to American business. In your August 12 speech, you referred to the so called “good” H-1B folks at Oracle, Cisco and Apple who create products and technologies. But IT development is not just about making products such as iPhones or iPads. The same skills and ingenuity are used in efficiently providing IT services to major American businesses that run the economy. You later said, “If you are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of the program, I and my colleagues believe that you should have to pay a higher fee to ensure that American workers aren’t losing their jobs because of unintended uses of the visa program.” But Infosys and similar companies are not temp agencies and have ingeniously taken advantage of a global around the clock business cycle. They have been made possible by high speed internet, and the concept of software as a service is a unique Internet driven strategy. Moreover, they have efficiently provided these services to American businesses in a time of rapidly aging populations in the United States and Europe, which will result in a significant shortage of IT workers in the near future,

As Angelo Paparelli astutely noted in his latest blog, “Temp agencies, whether domestic or foreign, supply temporary workers to fill short-term needs, sometimes at lower costs. Global sourcing enterprises use a legitimate business model that significantly benefits governments, businesses, citizens and customers by offering better quality, 24/7 service across time zones, and speedier start-up and delivery, while allowing customers to focus on core competencies. Global service providers are not ‘glorified international temp agenc[ies].’ They are no less vital to American businesses than are the hundreds of private contractors who serve the federal government, including the Departments of Justice and Homeland Security. Regrettably, the border-law’s definition of businesses that must pay the ramped-up H-1B and L-1 filing fees is not carefully tailored to reach only temp agencies engaged in body-shop activities. It unjustly imposes a protectionist tax on legitimate multinationals in the global sourcing industry,”

Senator Schumer, you focus only on the alleged exploitative aspects of the “job shop” business mode, but ignore completely the extent to which American companies are partnering with these Indian IT giants to create new business models that will transform the way services are provided to consumers on the most important issues facing them in their daily lives. Here is a great example, We know that you are too busy to find out much about the business model that these Indian companies use so perhaps we can do some of your research. These “glorified international temp; agencies” actually are some of the best run companies in the world . They are pioneers in workforce development and much of their mushrooming growth is not based upon smoke and mirrors but rather upon a holistic engagement with employees, treating them not as a cost to be controlled but a capital asset to be developed. During your upcoming recess, we recommend that you crack open a terrific book on this very subject called The India Way by Peter Capelli, Harbir Singh, Jitendra Singh and Michael Useem. It’s a real page turner! Just take a look at one of the malefactors you mention in your speech, Infosys. In 2002, they had 10,700 employees and total revenues of $545 million. Seven years later, they employed 104,900 with gross revenues of $4.6 billion. Since the H quota has been set at the artificially low level of 65,000 during this time, maybe they were doing something else right?

While we applaud and admire your commitment to Comprehensive Immigration Reform, and realize that you had to pass the border bill to show Republicans that you did something to control the border in order to get some bipartisan support, and we do hope your trust in them was not misplaced, we think it is a fatal mistake not to challenge you on this point and concede that the business model used by Infosys and others is bad for America. This is what The Economist has to say, “What’s also funny about all this chest-thumping service-sector protectionism is that it comes from the world’s leading exporter of commercial services, who you’d think would understand the need for open markets in an industry where it is the world’s biggest player. In 2008, the last year for which the WTO has comprehensive worldwide data, America’s exports of commercial services were around 5 times India’s (and about 28% of its total exports). And while latecomers like India have been playing catch-up, America’s service-sector exports have not exactly done badly: they more than doubled in value between 1999 and 2008, when the US had a big surplus in its commercial-services trade.” A great point. If all countries were to adopt your approach, guess who would be the big loser, Senator Schumer?

The wellsprings of American prosperity Senator are watered not by keeping talent out but by inviting talent in so that invention is encouraged, ideas are shared, and new technology developed . That Senator is what gives America its edge in the information age and keeps us a step ahead of our competitors. Why give that up? You are 100% right to worry that not enough American kids are studying computers on campus; as a result largely of the bust, the Computer Research Association that tracks these things reports that, at its nadir, the number of computer science majors undergraduate degrees at 170 institutions shrank to 8,021 in the 2006-2007 academic year. But, cheer up Senator! Since then, assisted by the advancement of computer research into emerging fields, enrollments have soared by 14%.

And here’s an interesting piece in Fortune Magazine, “It would be easy to imagine Reno, Ohio, as the type of place that would be hit hardest by outsourcing – a small American town losing out to the invisible hand shifting jobs to places like Bangalore and Guangzhou. Instead, outsourcing is bringing the jobs to Reno. Across the street from an Army Reserve center and next to a farm, a customer-service call center hums, its 250 workers answering phones for online travel agency Expedia. The center’s owner? Indian conglomerate Tata Group.” Senator Schumer, do you really oppose this?

Finally, while you admirably corrected the record by indicating that the Indian firms that you mischaracterized as “chop shops” were not engaged in illegal behavior, you still seemed to imply that the so called staffing agencies were responsible for reducing wages and cite to a flawed and biased study of the Economic Policy Institute, This study fails to take into account that employers must pay wages in accordance with DOL recognized prevailing wage surveys. If H-1B workers constitute a miniscule fraction of the employed population of the US, and wage surveys must take into account a broad cross section of employers, how can H-1B workers depress wages? Moreover, H-1B dependent employers, in order to escape the more onerous attestations, pay H-1B workers $60,000 or more, even if they may be entry level programmer analysts working in Minot, North Dakota! Perhaps, you could have looked around and referred to a recent peer reviewed study by Professors Lucas and Mithas of the University of Maryland School of Business by Professors Lucas and Mithas of the University of Maryland’s Business School, which demonstrates quite the opposite. H-1B and L visa workers in the IT Industry were paid 6.9% more than their American counterparts, and green card holders took home more than 12.9% than their American counterparts. This study confirms what we immigration lawyers have always known – that US employers seek out workers on H-1B and L visas because they are really good and not because they can get away by paying them cheaply. We also know that employers are not going to go through the hoops and hurdles of filing an H-1B or L visa petition, pay filing and attorney fees, take pains to comply with all of the complex regulatory requirements (including paying the prevailing wage for H-1B workers and those being sponsored for green cards through labor certification), and respond to burdensome requests for evidence, unless they believed in the worth of this foreign worker,

Over the long haul, India is more than a promising market for Silicon Valley, it is a strategic alternative. Just as economic prosperity in the 20th century required investment and raw materials, competitive dominance in the information age of the new millennium will depend, in no small measure, on who can prevail in the global hunt for the best technological talent. Those who want to protect US jobs by closing down the Indian pipeline are having precisely the opposite effect. By making it more difficult to work and remain in the United States, such policies will either enable the Indian IT industrial complex to reach critical mass much earlier than would have otherwise been the case or give our chief competitors in Europe, Japan and China a badly needed infusion of talent. Beyond this, there is a deeper point, namely this: India is on the rise. The question is not whether this development will take place but, rather, whether, when it does, the relationship with the United States will be characterizaned by partnership or competition. Senator Schumer, your brand of immigration protectionism will not prevent Bangalore from developing into a strategic alternative to Silicon Valley but it most certainly will destroy any chance for the kind of entrepreneurial amity and technological cross-fertilization that will allow America to reap the benefits of this Indian renaissance. Beyond that, IT wages in India will either fall or slowly rise since the supply of qualified workers will grow. This means, in turn, the US companies, under enormous cost pressures, will be unable to resist the obvious solution of sending IT jobs to India or simply establishing Indian subsidiary operations in the first place. Wages are transnational, not domestic, and what is a prevailing wage cannot be defined in only, or even primarily, a domestic context and make sense since the economic systems in which people work are increasingly global without much interest in, or respect for, national boundaries. Skill not geography counts. Immigration is an economic force not a political problem and must be dealt with as any other economic issue. In the long run, American jobs will hemorrhage if wages are kept artificially high when world markets offer attractive alternatives at high quality but much lower cost. If you think this serves US national interest, ask the thousands upon thousands of steel workers in Ohio and Pennsylvania whose jobs are now being done in Korea. The American economic miracle depends not on cheap labor but on productive labor capable of creating jobs in industries that have yet to be invented.

If you think that it is cheap for Indian workers to come here, Senator, how much cheaper would it be for them to stay at home and have US jobs come to them? We are, it seems, no longer the only game in town.Your bill will only serve to accelerate this change in the Indian IT business model so that, rather than coming to the customers, India’s IT giants will have the customers come to them. Infosys Technologies, the second largest software exporter in India with over 66 per cent of its revenues coming from North America , has already begun to plan for this transition. Kris Gopalakrishnan, CEO and ME of Infosys Technologies, predicts that, over time, as more US technology companies establish a presence in India, Infosys will be able to service them while cutting back on H-1B sponsorship. . You will have made the H visa irrelevant Senator but the jobs at issue will also have gone away, not just the H1B jobs but those of the American workers that are inextricably linked with them. Your bill forces India to respond for their failure to do so will only serve as a green light to the rest of their Western customer base to follow your example. That is the real fear. An expression of this anxiety over the future was immediately played out on the Mumbai stock exchange where shares of Infosys Technologies Ltd., Tata Consultancy Services Ltd. and Wipro Ltd. declined across the board. Tata Consultancy, the country’s largest IT concern fell l 1.7 percent; Infosys, the second-biggest dropped 1.6 percent and Wipro slid 2.1 percent on the Bombay Stock Exchange, compared with a 0.4 percent loss in the benchmark Sensitive Index. Change that was inevitable will now come more suddenly and with greater force. The thousands of Americans working in India will almost certainly be the collateral damage swept up by the coming Indian response.

Senator Schumer, we know that you have good motives because you desire Comprehensive Immigration Reform and pushed the border bill to eliminate any excuses that nothing was being done at the border first. I think you will find lots of people who are inherently anti-immigrant. They will continue to ask for more enforcement and will never agree on a CIR measure. I hope we are wrong, and that you did not give away a previous bargaining chip prior to passing a CIR proposal, and have it paid from a group of employers who have nothing to do with illegal immigration at the Mexican border.

Thank you for hearing us out, Senator Schumer. In case you are stuck and cannot get CIR passed, and see more jobs moving outside the US because of the hike in fees and other protectionist proposals, please do not hesitate to call upon us and we will be glad to write another letter of advice.


By Gary Endelman and Cyrus D. Mehta

A Border Security bill, H.R. 6080, which was passed by the House on August 10, 2010, proposes to add 1,500 more border officers on the US-Mexico border. It proposes to pay for their salaries and other support systems by substantially raising the filing fees of H-1B and L petitions filed by companies that employ 50 or more employees if more than 50% of these employees are admitted on H-1B or L visas. H.R. 6080 is identical to S. 3721 passed in the Senate on August 5, 2010. When discussing the bill, Senator Schumer, who initiated the fee increase, indicated that the burden of the increased fees – $2,000 more for each H-1B and $2,500 more for each L – would fall on Indian IT companies and likened the largest Indian IT giant, Infosys, to a “chop shop,” It is unclear whether the Senator meant that Infosys was like one of those shady places where stolen cars parts are surreptitiously dismantled and sold, or whether it was a slip of the tongue and he actually meant “job shop.” Since a revenue generating measure must first be initiated in the House and S. 3721 is technically infirm, H.R. 6080 will again be sent to the Senate tomorrow for a vote

We ask that the Senate seriously consider removing the increased fee provision for a number of reasons. The very use of the pejorative term, be it “chop shop” or “job shop,” which has been legitimized in public discourse much as racist terms found acceptance in the Jim Crow era ignores the very real value that firms like Infosys, Wipro and Tata bring to American business. They lower costs, find top drawer talent and keep US competitiveness at a high level. That is why all major US corporations, and many governmental entities, use them and why not using them would make business more expensive and less able to maintain leading positions on the world economic stage. The use of this term reflects something more profoundly disquieting, a cultural insularity that is unworthy of a great power, a state of mind that insults the very nations whose good will we claim to be courting.

Our elected representatives ought to also consider that Infosys employs 1,300 citizens and permanent residents in the US and has been working towards hiring over 1,000 additional people over the past few quarters, Also take note that 372 acquisitions worth $21 billion and 127 Greenfield investments worth $5.5 billion by Indian companies has created nearly 60,000 jobs between 2004 and 2009, a report said on August 10, Also worth noting is an extract from the remarks Secretary of State Hilary Clinton delivered at a US-India CEO Summit on June 22, 2010 in Washington DC,

As both President Obama and Prime Minister Singh have said numerous times in the last 16 months, the increased cooperation between the United States and India is the cornerstone of our 21st century strategic partnership. The President and the prime minister reinvigorated this forum last year based on the idea that Washington and Delhi need to catch up to the business and innovation cooperation that is already happening in New York and Mumbai. In the latest example of the growing links between our countries and our economies, just last week Congressman Jim McDermott unveiled a report by the India-U.S. World Affairs Institute showing that Indian investment in the U.S. grew by an estimated 60 percent in 2009, to over $7 billion. That same report indicated that trade in goods between our countries tripled between 2004 and 2008, and that since 2004 Indian acquisitions in the United States have supported approximately 40,000 jobs here in our country, with manufacturing exports to India linked to another 96,000 jobs. That’s great progress and it’s a solid base on which to build.”

Immigrant rights advocates are legitimately opposed to the bill as putting a few more troops on the border does nothing to solve our immigration problems and distracts from the main objective, which is to repair a broken immigration system through Comprehensive Immigration Reform. But advocates have also remained strangely silent about the penalties on India-based employers in this bill, and we wonder whether it reflects a tendency to throw Indian IT firms under the bus. Is it that by providing more disincentives to Indian firms, there will be less usage of H-1B numbers so others can enjoy them, along with the impact that the January 8, 2010 Neufeld Memo and the intensely prejudicial scrutiny of Senator Grassley has had on IT firms? This is all too reminiscent of the division within the pro-immigration community in 1996 when business groups remained moot on the sidelines while Congress shredded due process protections for the undocumented in the vain hope that they would somehow escape the whirlwind. Although the more onerous H-1B dependent employer provisions in the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) were targeted towards Indian companies, on February 17, 2009, these additional attestations have also been imposed on employers who received funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act, through the Employ American Worker Act (EAWA). There has clearly been an unspoken but transparently real anti-Indian animus that can be seen in much of US immigration policy. The impact of the priority date system shows it as we have demonstrated in The Tyranny of Priority Dates, The refusal to accept 3 year Indian university degrees, regardless of how prestigious the institution is, shows it. We need to denounce this bias for what it is, and also because these biases generally come back to haunt all other immigration groups.

Will the bill actually be able to pay for itself through the increased fees or will it increase the government’s debt? H-1B usage by the top Indian IT firms has been down in 2009, As our esteemed colleague Angelo Paparelli has noted in his recent blog, no analysis has been undertaken as to how much revenues can be generated through increased fees from these companies, and it also likely that more jobs will move overseas “because America is obviously and increasingly hostile to global businesses,”

The increase in fees will only serve to lower IT wages in India and serve as an incentive for more American IT jobs to leave the US. Only by increasing the H-1B numbers can the wage differential between American and Indian IT workers be narrowed. This is a perfect opportunity to remind everyone that, despite India’s vast population, there is a real and growing IT talent shortage in India, Current immigration policy undercuts the ability of US IT companies to remain in the US by choking off H numbers and L numbers so that there their Indian competitors can lower salaries and attract US business. Not only will this lower IT salaries in India and drive more jobs out of US but it will accelerate the ability of the Indian IT industry to develop a critical mass of IT talent so that, rather than just attracting jobs from the US, they will have the ability to present a strategic alternative to Silicon Valley. This is a quantum difference from simply enticing US IT jobs to migrate to India. This will make Silicon Valley strategically irrelevant so that, regardless of what the H quota would be, or how many restrictions are attached, the numbers will gather dust since the desire to use them will no longer be present. The irrelevance of Silicon Valley is neither beneficial for the US nor India since the growth of Indian IT was largely fueled by Indian immigrants who benefitted and thrived in Silicon Valley.

This latest action shows the continuing conflict or tension between the global economy in which the US, like all advanced nations, participates and a national immigration policy that responds to domestic pressures. While the former requires the regular, predictable yet controlled movement of all forms of capital, including human capital, the latter does an injustice to the very groups that it claims to protect by promoting the exodus of white collar jobs. This kind of anti-Indian bias can only serve to conflict with, and so limit the effectiveness of, US attempts to improve the overall US-Indian relationship, precisely in the way that the Chinese Exclusion laws complicate US relationships with Japan and other Asian nations in the run up to World War II. At a time when we have signed a nuclear cooperation pact with India, when we seek expanded access into many different sectors of the Indian economy, to pursue immigration policies whose underlying and barely concealed purpose is to keep Indians out of the US and make it difficult for those already here to stay permanently makes no sense, if only from the narrow perspective of US national interest, let alone our moral stature as a leader on the world stage.

This is our main critique of the punitive legislative proposal against Indian companies. We object not because it insults India, which it does or even because it legitimizes Indian bashing as acceptable political discourse which is most certainly true. Rather, we object because it conflicts with American foreign policy and, by making the US economy less competitive in the global marketplace, fails to achieve its stated objective of protecting US workers against the winds of change. We seek to sail with these winds, to make them our friend and to benefit from the warmth of their embrace. So should we all. In a post-9/11 world of societal anxiety and pervasive joblessness, it is not hard to understand why Indian IT companies make an irresistibly inviting target. To those who take refuge in this, and in the possibility that such nativist wrath will not come to focus its fury on them, we urge most fervently that they think again and consider the teaching of German pastor Dietrich Bonhoeffer who gave his life in the struggle against Nazism:

First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me”

(We give credit to our friend and colleague, Laura Danielson, a noted immigration attorney, for sowing the seeds for some of the ideas in this post)

H-1B Portability When There Is A Gap In Status

Most within the H-1B visa community are familiar about being able to “port” under INA § 214(n) to a new employer upon the filing of a new H-1B petition without waiting for the petition to be approved. This article endeavors to creatively draw more out of § 214(n) to benefit the H-1B worker in troubled economic times.

If the worker in H-1B status is laid off, and there is a gap between the termination of the employment and the filing of the H-1B petition, it may still be possible for this worker to commence employment upon the new H-1B filing despite a gap in status. § 214(n)(B) provides for such a possibility so long as the new “employer has filed a non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General.” Also, the H-1B beneficiary should not have worked for the new employer prior to filing the new H-1B petition, or otherwise worked without authorization. In other words, so long as the validity period of the prior H-1B petition has not expired when the new employer files the H-1B petition (as determined by Form I-94), § 214(n) allows employment authorization despite a lapse in status to “continue for such alien until the new petition is adjudicated (emphasis added). If the new petition is denied, such authorization shall cease.”

Of course, even if employment authorization continues under § 214(n), the worker who has failed to maintain H-1B status, by virtue of being terminated from the employment, must still request an extension of status under 8 CFR § 214.1(c)(4). Fortunately, § 214.1(c)(4) provides the USCIS  with broad discretion to approve an H-1B extension of status even where there has been a lapse, and the USCIS has been  known to forgive  long lapses of many months if one can demonstrate exceptional circumstances. This discretion has generally been exercised rather favorably if there has been a short lapse of status, the rule of thumb being less than 30 days between the termination and the new H-1B filing. Since 8 CFR § 214.1(c) (4) is discretionary, there are bound to be cases where the examiner may be fervently unwilling to excuse even a day’s lapse in status. Hence, while the new H-1B petition is approved, the corresponding extension of status may get denied. Under the portability provision, § 214(n), employment authorization shall cease “[i]f the new petition is denied.” While this phrase is ambiguous as it does not specifically refer to the denial of the request for extension of status, even while the H-1B petition is approved, most practitioners are of the opinion that the worker can no longer exercise portability and must cease working for the new employer.

The beneficiary of the H-1B visa petition, in such an eventuality, is advised to immediately leave the United States and apply for a new H-1B visa at a US Consulate overseas. Since the denial of the extension of the H-1B status would invariably be based on an adverse status finding, INA § 222(g) would also trigger and void the previously issued H-1B visa in the passport. § 222(g) would require the H-1B worker to apply for a brand new H-1B visa, and to apply for this visa and any other nonimmigrant visa in his or her home country, subject to some narrow exceptions, for the rest of his or her life.

To avoid the risk of a trigger of § 222(g), but to allow the H-1B worker to still “port” despite a lapse in status, it has been suggested that the H-1B petition can be filed for consular notification without an accompanying request for extension of H-1B status. Nothing in § 214(n) prevents the filing of the new H 1B petition (even without an extension of status) and allowing the worker to “port” to a new employer until the adjudication of the H-1B petition. If the H-1B petition is denied, this person can no longer continue to port. But if the H-1B petition is approved, this person, if s/he already has a valid H-1B visa stamp in the passport, can leave the United States and enter from a contiguous country such as Canada without having to travel to the home country.

The intriguing question is whether such an alien can continue “porting” even after the H-1B petition has been “adjudicated” (which means approved) without an accompanying extension of status. As noted, INA § 214(n) contemplates a situation where employment authorization under “portability” continues until the petition is “adjudicated,” but § 214(n) goes on to state, “If the new petition is denied, such authorization shall cease.” There is no reference to “approval” in § 214(n). Could the term “adjudicated” only refer to instances where the H-1B petition has been denied but not approved? The USCIS in 2007 seemed to agree, in an exchange of correspondence between attorney Naomi Schorr and Efren Hernandez, Chief, Business and Trade Branch, USCIS (posted on AILA InfoNet at Doc. No. 07052563). This scholarly exchange admittedly occurred in the context of whether an H-1B worker who was with a cap-exempt employer (such as a university) was able to ‘port” to a cap subject employer prior to October 1, the start of the new Fiscal Year when H-1B numbers once again become available.  While Mr. Hernandez agreed that § 214(n) would allow the alien to “port” even if there were no H-1B visa numbers prior to October 1, he  also agreed that it would be unfair for this person to stop porting if the H-1B got approved before October 1. Such an H-1B worker would be disadvantaged with the early approval of the H-1B especially if the H-1B petition was filed through premium processing over someone who filed the H-1B petition regularly.

This extract from Mr. Hernandez’ response to Ms. Schorr is worth noting:

Congress appears to have not contemplated a situation in which H-1B status would not be immediately conferred upon the portability worker upon approval of the H-1B petition. By addressing the result of a denial but not an approval Congress seems to have assumed that the alien would immediately be covered by the approval and would no longer require the employment authorization conferred by 214(n), and thus drafted 214(n) so that the employment authorization it provides ends upon “adjudication.” I agree that a result in which an alien with a pending petition is in a better situation than one with an approved petition makes no sense. A reading of 214(n) such as the one you suggest that continues employment authorization until H- I B status is available is a logical one, and USCIS will explore this position in future rulemaking.

The possibility of continuing to port after an H-1B with consular notification is only discussed here as an intellectual exercise. It would be an extremely aggressive position for the H-1B worker to continue to assert “portability” even after the H-1B petition, sans a request for extension of status, is approved. Moreover, Mr. Hernandez rendered his opinion on the continuance of porting after the H-1B was approved in the context of an H-1B worker who was already maintaining status, and would continue to do so as of October 1. At the very least, the alien must depart within 180 days from the expiration of the previous employer’s H-1B validity period as s/he would begin to accrue unlawful presence after the expiration date of the prior H-1B validity and potentially trigger the 3 and 10 year bars to reentry.

In sum, this author prefers to file an H-1B, with an extension of status, even if the status has lapsed especially if there are extenuating circumstances.  Such extenuating circumstances exist when the H-1B worker is suddenly terminated, and it takes more than a week to file and obtain a new Labor Condition Application prior to filing the H-1B petition. The upside is great if the H-1B and extension gets approved. If the H-1B is approved, but the extension is not approved, one has to weigh the burden of triggering the penalties under INA § 222(g) but still be able to successfully obtain the H-1B visa in the home country versus a situation where it would not be tenable for the alien to visit the home country. If the petitioner and beneficiary opt for the H-1B consular notification approach only while also opting to exercise portability, they need to fully understand the consequences before undertaking this strategy.


By Gary Endelman and Cyrus D. Mehta

Dear Mr. Mayorkas:

Please forgive us. It has been far too long since we last wrote to you, Times are hard all around. You are bleeding revenue with caseload dropping. Our clients are lost in limbo and there seems to be no exit. Maybe now is the time to try something new.

Ali (let’s do away with formality), facts are indeed stubborn things. Here are some of them. As you told the House Judiciary Immigration Subcommittee on March 23, 2010, FY 2009 was not the best of times: “In fiscal year 2009 USCIS experienced a marked decline in revenue. Revenue declined 15 percent- a drop of approximately $345 million- from the estimate in the fiscal year 2007 fee rule and approximately 8 percent (or $164 million) from our estimate just one year ago. We have not seen a material increase in filing volumes for fiscal year 2010. This is clearly unsustainable.” USCIS closed FY 2009 with a $164 million shortfall though some posit a $200 million gap. Faced with these numbers, we understand full well why you felt that you had to raise user fees. Ali, this will not work in the long run. Remember what happened with N-400 naturalization applications when USCIS raised the filing fee to $675 in 2007? The number of new cases plunged from 1.4 million to just over 525,000 in a single year. In a painful and protracted recession, people will simply keep their hands in their pockets. Look at the numbers from your own 3rd Quarter FY 2009 report to Congress on October 5, 2009: the drop in applications was not confined to naturalization but spanned the full spectrum of all main product lines:

– “There has been a significant reduction in year-to-date employment filings.”
– “The non-immigrant worker I-129 year-to-date filings are at 67 percent and the immigrant worker I-140 filings are at 35 percent of anticipated annual receipts”
– “Naturalization applications N-400 year-to-date receipts continue to be below forecasted levels at 64 percent of anticipated annual receipts.”

Volume is going through the floor. Ali, you said it best yourself in the Oct 2009 report card to Congress: “It would appear the economy is having an effect on immigration.”

What to do? If you cannot squeeze more out of existing customers, how about trying to get some new ones? Yes, we know it is an election year and Congress is unlikely to enact Comprehensive Immigration Reform. That does not mean that all is lost. We have a way for USCIS to end its financial woes while still doing the right thing by our clients! Imagine that, making money and doing justice at the same time! The best thing about it Ali is that you do not have to go hat in hand to Congress nor even endure the tender mercies of APA rulemaking. Settle in for what comes next.

Ali, how many I-140s and I-130s have your folks approved since the adjustment of status window closed on August 16, 2007? You probably do not capture these numbers in a discrete fashion but let’s agree it is a whole bunch. These are not immigrant petitions tied to any pending adjustment of status cases since the gulag of visa retrogression has put even this faint hope out of reach. So long as you do not challenge the tyranny of priority date,, so long will you be going broke. There is a better way. You too have realized it. While we were composing this letter, we chanced upon a leaked undated USCIS Memo addressed by your colleagues to you entitled Administrative Alternatives to Comprehensive Immigration Reform (“Alternatives to CIR Memo”),, suggesting use of executive discretion to provide remediation to the current inequities. Nothing in the INA would prevent you from allowing provisional submission of an adjustment of status application in the absence of a current priority date following approval of an I-140 or I-130 immigrant petition. USCIS would not approve this provisional submission in the absence of a current priority date but everything else could be done in anticipation of this blessed event. You are already doing much of this pre-adjudication right now. You do not even have to change any of your regulations. You could do it through the positive exercise of your discretionary authority, precisely as the USCIS did in July 2007 when, without any regulatory change, it threw open all employment categories for one month due to the communication snafu over visa availability with your Foggy Bottom colleagues at the State Department. If, out of an abundance of caution, you want to play by the numbers, we have prepared an appropriate amendment to 8 CFR 245.1(g)(1) for you to consider ( new language in bold italics):

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Nothing could be simpler. Ali, you have it within your power to end all of the USCIS’ financial woes. You will create an entire new class of customers by the tens, if not hundreds, of thousands and you can charge as much as your want for their provisional adjustments- the sky is the limit for the price of hope is never too high. Until now, Ali, you have listened to your policy gurus who have told you the USCIS is trapped in a zero sum game with no alternative but to make those already inside the tent pay more. We offer a better way. Sure, there will be expenses to service the tsunami of customers but, as with legalization and 245(i), the sheer volume of cases will overwhelm the added costs, particularly when economies of scale and attendant efficiencies are factored in to the equation.

There are other innovative ideas, though not as audacious as our first idea, you can think of too, Ali. The Alternatives to CIR Memo indicates that you have thought of granting EADs to spouses after the H-1B spouse has maximized the six years. How about granting the EAD earlier on, at the very outset, like L-2 or E spouses? These spouses of H-1Bs who also had careers in their home countries need not sit at home twiddling their thumbs while patiently waiting for the day they can file an adjustment application or obtain work authorization. Not only will they rev up our economy, but the filing of tens of thousands of EAD applications will be another source of fees for the USCIS. Can you also think of the revenues you would generate if you allowed for the pre-adjudication of waivers of the 3 and 10 year bars to re-entry prior to departure? This too has been thought through in the Alternatives to CIR Memo, and we applaud your people for doing so and for even considering a lower hardship standard. Most folks with approved I-130 or I-140 petitions who have accrued unlawful presence in excess of 180 days do not want to take the chance of leaving the US unless they know that they can obtain the waiver. Not only will this generate fees, but it will also reduce the undocumented population if people are assured of coming back with green cards after they trigger the 3 or 10 year bars upon departure.

In case you still consider our revenue generating schemes too outlandish, how about some plain vanilla ideas, already proposed in the Alternatives to CIR Memo such as subjecting more applications to premium processing? The EAD presently takes 90 days to renew. Many people forget to file applications in advance of 90 days, and then have to stop working if USCIS does not renew before the expiration of the EAD. Could you consider premium processing of EADs for the thousands of desperate people who want their work permits renewed before the expiration date so that their employment is not disrupted? You could also consider the simultaneous premium processing of advance parole permits? Here are other variations on a premium processing theme: Allow premium processing for stand alone I-539 applications for extension or change of status; premium processing for biometrics for those who wish to leave the US soon after filing the I-131 for a Re-entry permit; charge more for multi-year EADs and parole, and add a further premium for a combined multi-year EAD/Parole. Finally, increase the premium for a 7 day turn around as opposed to a 15 day turnaround. This would also make USICS more efficient. In the 2007 USCIS report to Congress, your agency explained that premium processing involved fewer employees, less repeat steps and less delay.

Take note, Ali, that premium processing will never eliminate the backlog. Those who can pay will pay the higher premium fees. Those who cannot but still need the work permission will pay and wait as the line grows ever longer. No matter how high the fees go, the line remains. Since fees came into existence as the principal USCIS funding mechanism in 1988, the fees and the backlog have both increased. The only way to get rid of the backlog is to change the rules of the game, to expand the universe of clients rather than getting more out of the current universe. That is what provisional submission of adjustments would do. Like 245(i), it creates an entirely new revenue stream that provides the funding for a project dedicated to backlog elimination, not just reduction. In the end, this will save taxpayer money and achieve USCIS efficiencies in a way that higher fees will not make possible. Our proposal also goes hand in hand with the expansion of use of Parole In Place, that has been suggested in the Alternatives To CIR Memo.

Be strong and of good courage Ali. The Alternatives to CIR Memo is a great first step, and we will stand by you despite the fact that critics will think you are bypassing the will of Congress. We have cogently argued in Tyranny of Priority Dates and companion blog pieces that this is not the case as Congress has already given you authority in the existing INA to use executive discretion to ameliorate the hardships of applicants, You are a student of history. Remember what Lincoln said to Congress on the occasion of his second annual message dated December 1, 1862: “The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise — with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country” Worth a try right?

United States v. Arizona: Constitution Wins Over the Tyranny of the Majority

In Round 1 of the legal battle against Arizona’s Immigration Law, S.B. 1070, the Constitution triumphed. Judge Susan R. Bolton agreed with the United States that the State of Arizona had invaded into an area that has always been occupied by the federal government, The judge blocked the most controversial provisions – allowing local enforcement to determine immigration status based on a reasonable suspicion that one is unlawfully present and criminalizing failure to carry registration documents.

The following extract from Judge Bolton’s order is particularly revealing of the mischief that SB 1070 would unleash tomorrow, July 29, 2010, if these provisions were not preempted under the Supremecy Clause of the Constitution:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.

Under our Constitution, a court can block and subseuqently strike down a law that is ultra vires, however popular it might be among the people. It is true that SB 1070 had broad support among people in Arizona. Even in national polls, a majority of people were in favor of this law. Yet if the majority were to have its way, the minority would get oppressed in the same way that a tyrant or despot would trample upon a despised group of people, which is why the term tyranny of the majority, coined by Tocqueville, has gained added significance after the passage of SB 1070 . If the majority of people in a town hypothetically supported a proposal and passed into law a provision to banish all immigrant children from its public school and playgrounds, notwithstanding their status, this would surely be struck down even if it was most popular. The court would serve as a check against the majority, and be guided by the bill of rights and other provisions in our Constituion.

As a lawyer and a naturalized US citizen who might have potentially gotten ensnared under SB 1070 if I ever visited Arizona (but I have chosen to boycott the state until SB 1070 gets completely extinguished), I am proud that the Constitution won over the views of the majority in Round 1. This issue is going to ultimately land up in the Supreme Court, and I do hope that the Constitution will continue to triumph all the way till the end!


By Gary Endelman and Cyrus D. Mehta

In all the media frenzy over SB 1070, the extent to which Arizona has abridged the constitutional right of interstate travel has largely been overlooked. Indeed, when seeking to strike down SB 1070, the Justice Department almost exclusively based its objections on preemption by IRCA under the supremacy clause, devoting no attention to other constitutional infirmities. We write now to raise attention to another issue, which has largely been overlooked. Realizing full well that larger issues are at stake, it remains our view that infringement of the right to travel merits serious comment and stands as yet one more reason why Arizona’s initiative should trouble us all.

What about SB 1070 would discourage citizens and lawful resident aliens from travelling to Arizona? Consider the following scenarios and feel free to invent your own:

You are a naturalized American citizen born in Karachi, Pakistan. On a vacation to the Grand Canyon, you are stopped for speeding. Does the State Trooper then have “reasonable suspicion” to believe that you are “unlawfully present” in the United States?

You are a lawful permanent resident born in Honduras. Taking a vacation from your job with Kodak in Rochester, New York, you are trying to find the best directions to visit your old college roommate in Tempe. Not sure what to do, you make the mistake of asking local law enforcement at the next town. Suspicious, they demand to see your “green card” which you left in the motel safe so as not to lose it on the trip. Before you know it, the city police refuse to let you leave since there is no proof of your legal status and it will be the next day until federal authorities can verify it.

Your sister from Ciudad Juarez is getting married in Phoenix and you have to be there. Unfortunately, your car insurance has expired and, right before you leave, you file to renew it but there is not enough time to get a new insurance card before you have to drive from your home in Santa Fe, New Mexico. You get stuck at a random check point where all the drivers have to produce proof of insurance. Not having that, you show your Mexican birth certificate and most recent I-94 showing an expired H1B status for which an extension has been filed but not yet approved since your employer did not want to pay for premium processing. True, law enforcement officials in Arizona are not supposed to consider your “race, color, or national origin” but will they do that anyway under the rationale that this is permitted by the Arizona Constitution?

The semester is over and your whole dorm at Arizona State University has a keg party to celebrate. Things get louder than planned and the campus constabulary pays a not so friendly visit to see what is going on. Your friend from the University of Iowa has come to visit you and he remembers that back home in Cairo such situations do not always end happily. Will he want to come again next year?

Sure, these are made up concerns but are they that far removed from reality? In each of them, how hard is it to believe that the police officer or state trooper making the arrest or conducting the investigation would not claim probable cause to believe that you are removable from the United States? Who among us would be eager to travel to Arizona to find out? These questions are more than free-floating anxieties for they illustrate why SB 1070 strikes at one of the most basic constitutional freedoms, the liberty to travel from one state to another in a civilized and secure manner. Let’s find out what is at stake.

SB 1070 provides a safe harbor by stating that a person is presumed not to be an alien who is unlawfully present in the US if the person provides, inter alia, a valid Arizona driver license. What about a license or another form of identification issued by another state or other federal or state agency? The authors credit David Isaacson for pointing this out. Section 11-1051 states that another identification will only provide a safe harbor if the governmental entity “requires proof of legal presence in the United States before issuance, any valid United States Federal, State or Local government issued identification.” Not every state requires proof of “legal presence” before issuing a driver’s license. For instance, a perusal through New Mexico’s Department of Motor Vehicle’s website,, indicates that the state will accept a Matricular Consular Card, foreign birth certificate or valid foreign passport as proof of identification number and identity. If a US citizen with a driver’s license issued by New Mexico, who was originally born in India, is driving from Santa Fe to San Diego, her driver’s license will not help if an Arizona state trooper stops her if she was going at 58 mph instead of 55 mph and is not carrying other proof of being lawfully present, such as a US passport. If this person is prudent and aware of the dangers of SB 1070, she would rather avoid passing through Arizona and take an extremely circuitous route via Colorado, Utah, and Nevada in order to get to San Diego in California, her final destination.

Let’s read the Constitution for a bit. The Fourteenth Amendment reminds us that Arizona cannot “deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The term “person” when used for this purpose includes both citizens and aliens here under color of law. Yick Wo v. Hopkins, 118 US 356 (1886). Any attempt by Arizona to classify travelers based on their where they come from is “inherently suspect and subject to close judicial scrutiny.” Graham v. Dept. of Pub. Welfare, 403 US 365, 372 (1971).Taken together, each of the individuals noted above belong to a “discrete and insular” minority, United States v. Carolene Products Co., 304 U.S. 144, 152-153 n.4 (1938) and we would do well to remember that “ the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” Takahasi v. Fish & Game Comm’n, 334 US 410, 420 (1948).All those who come here, not just citizens, can claim the Constitution as their own.

We take for granted our freedom to move from state to state but, precisely because not everyone can, the Constitution protects it. The right to mobility has repeatedly been recognized and upheld by the Supreme Court. See, e.g., Memorial Hospital v. Maricopa County, 415 US 250, 255 n.7 (1974); Oregon v. Mitchell, 480 US 112, 237(1970); Edwards v. California, 314 US 160(1961); Twining v. New Jersey, 211 US 78, 97 (1908). This is a right that is “firmly embedded in our jurisprudence, “ United States v. Guest, 383 US 745, 757 (1966), a freedom so central that it is “assertable against private interference as well as governmental action…a virtually unconditional personal right, guaranteed by the Constitution to us all.” Shapiro v. Thompson, 394 US 618, 643 (1969) ( Stewart, J, concurring ). Whoever they are, wherever they began, regardless of why they arrive, those who come to Arizona enjoy the “right to be treated as a welcome visitor rather than an unfriendly alien…”Saenz v. Roe, 526 US 489, 500-501 (1999). Whatever authority Arizona has, it is not so great as to decide who has the right to live or visit; indeed, the very exclusivity of SB 1070 runs directly counter to the fundamental spirit and essential character of the Fourteenth Amendment itself, an expression in Mr. Justice Cardozo’s ringing words of the “theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. G.A. F. Seelig, Inc., 294 US 511, 523 (1935)(Cardozo, J). The chilling effect that SB 1070 must have on the right of interstate travel can “produce nothing but discord and mutual irritation, “ as Chief Justice Taney so eloquently expressed in his celebrated dissent in Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1949).

Those who defend SB 1070 correctly note that the right of interstate travel has traditionally been regarded as a privilege of national citizenship. While the Supreme Court has not taken a step further to establish an explicit nexus between the right to travel and alienage, it is no less true that the Court has neither prohibited such a connection nor opined against it. “There are millions of aliens within the jurisdiction of the United States, “Mr. Justice Stevens reminds us in Matthews v. Diaz, 426 US 67, 77(1976), “ The Fifth Amendment, as well as the Fourteenth Amendment, protects everyone of these persons from deprivation of life, liberty, or property without due process of law…(citations omitted) Even one whose presence in this country is unlawful, involuntary or transitory is entitled to that constitutional protection.”

Critics will rightly note that the word ”travel” nowhere appears in the text of the Constitution itself. Some liberties are so intrinsic that they need not be mentioned by name. Before we had our present charter, Article IV of the Articles of Confederation, our first constitution, guaranteed that “ the people of each State of each State shall have free ingress and regress to and from any other State.” Professor Zechariah Chafee teaches us that, whatever its constitutional provenance, freedom to travel, no less than freedom of speech, press, religion or assembly, is a basic human right whose exercise comes under the full panoply of due process of law. Zechariah Chafee, Three Human Rights in the Constitution of 1787 at 185.

Why oppose SB 1070? Mr. Justice Jackson gave us the answer in Edwards v. People of State of California, 314 US 160, 184 (1941) when he refused to allow California to bar poor people : indigence was not a contagion that must be quarantined. The Arizona legislature has already recognized why SB 1070 is so troubling to so many and, through its subsequent enactment of HB 2162, advised law enforcement authorities not to “consider race, color or national origin,” except to the extent allowed under the Arizona or US constitutions. Despite this, we know in our bones that the impermissible invocation of these invidious and immutable characteristics is the only way for this evil law to be enforced; its very existence is an irresistible invitation to government overreaching the protection against which is “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 US 319, 325 (1937)(Cardozo, J).


Gary Endelman and Cyrus D. Mehta

As we enter the second decade of the 21st century, the world seems to be getting far more flat than what Tom Friedman originally envisaged with people being able to deliver services and products to the US and other countries from anywhere via the internet. Also, coinciding with this flat world is the most severe US recession in living memory, which compels people, including immigrants, to find jobs in other parts of the world and yet remain firmly rooted with the US.

Gone are the days when immigrants came to the US in sailboats and steamships, destined never to return home. In today’s globalized flat world, with access to cheap direct flights across continents, broadband internet, Blackberries, Twitter, Facebook, LinkedIn and video conferencing, an immigrant can continue to maintain deep ties and bonds even if absent from the country. It is quite typical for a US company to assign its key employee, a freshly minted green card holder, working in the US to set up operations in Mumbai or Shanghai for a few years, with the intention of ultimately returning to the US. Yet, this person’s ability to become a US citizen can get jeopardized as a result of this overseas assignment. In our previous article on a related subject, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849 (July 1, 2008), we focused on strategies to preserve permanent residence. In this blog post, we examine the tension between our citizenship laws and the global economy, and the challenges it poses to those who desire to naturalize.

An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

This is the killer provision, which we focus on in this post, and which creates problem when a permanent resident is based overseas and wishes to naturalize after completing 3 or 5 years, but is not able to continuously reside in the US even though he or she still returns to the country frequently and maintains extensive ties. Naturalization is a most desired goal, since paradoxically, once the person successfully naturalizes, he or she is no longer required to maintain a residence in the US. However, in order to naturalize, the applicant must maintain continuity of residence, and this is often thwarted by the fact that he or she is working overseas. The spouse who is overseas because he or she is accompanying the other spouse and who is often caring for the children, also suffers as a result.

There appear to be two views of what constitutes residence. INA § 101(a)(33) states: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Note that the concept of domicile, which considers the applicant’s intent rather than the place where he or she actually lives, is not relevant in determining whether the applicant for naturalization has resided continuously in the US. Under this provision, an applicant may be deemed to not being a resident regardless of the number of days he or she is away from the US. An applicant who is getting nowhere during the naturalization interview because of the examiner’s invocation of § 101(a)(33) should remind the examiner that the statute requires not mere residence but continuous residence in the US, and must point him or her to 8 C.F.R. § 316.5(c)(1)(i), which provides that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back to back lengthy trips although each one was less than 180 days. Remember, if your client did not stay away one year, he or she must be considered a resident of the same state where they lived before leaving. 8 C.F.R. 316.5 (b)(5). See Accardi V. Shaugnessey, 347 US 260(1954); Morton v.Ruiz, 415 US 199, 235 (1974)(“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”).

What if the person was out of the US for more than six months and less than a year and has disrupted continuity of residence? Don’t lose hope. 8 C.F.R. § 316.5(c)(1)(i) provides examples of the types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence. Specifically, the regulation states that the evidence may include “but [is] not limited to” evidence that during an extended absence:

(A) The applicant did not terminate his or her employment in the US;
(B) The applicant’s immediate family remained in the US;
(C) The applicant retained full access to his or her US abode; or
(D) The applicant did not obtain employment while abroad.

In Li v. Chertoff, 490 F.Supp.2d 130 (D. Massachusetts 2007), a federal district court held that an applicant who had absences of more than six months but less than 1 year as a student in Canada did not disrupt the continuity of residence even though she had obtained permanent residence in Canada. The plaintiff, after being downsized from a US employer, went to Canada to pursue an opportunity to study in a dental program at the University of Alberta. Her husband accompanied her to Canada and took up a job with the same contractual term as the plaintiff’s course of study. The rest of the plaintiff’s family still lived in the US and she retained a home in Cambridge, Massachusetts, where mail was delivered and she also continued to file tax returns in the US. While rejecting the application of the generic definition of residence in § 101(a)(33) in favor of continuous residence, the court clarified that that the four criteria in 8 C.F.R. §316.5(c)(1) may establish that the applicant did not disrupt the continuity of her residence, but also noted that it may consider other relevant factors. Although the court did not accept her argument that she did not terminate her employment in the US under prong (A) since her employer forcibly terminated her, the court accepted the fact that her extended family remained in the US under prong (B), even though her most immediate family member, her husband, accompanied her to Canada, and it was undisputed that she retained access to her home in the US under (C) and she did had not obtained employment in Canada under (D).

Compare Li v. Chertoff with an earlier case In Re Bartkiw, 199 F.Supp. 762 (E.D. Pa. 1961), where the former INS granted naturalization based on incorrect information, not knowing about Bartkiw’s relocation to Canada. The district court in Pennsylvania in denying Bartkiw’s claim that she had not disrupted residence made an observation which was redolent of an era prior to feminism’s onset a few years later:

We find it impossible to conclude that this young woman, married, with her husband holding a responsible position in Canada where he was a citizen, and who thereafter maintained a home with him, did not intend to live in Canada as a resident. It may very well be, as stated in our findings of fact, that both she and her husband hoped that at some time in the future she would become a citizen of the United States; that he would obtain employment in the United States and that they would live here permanently as husband and wife. But, unfortunately for the position of the respondent, that hope for the future and not a present fact.

Bartkiw, 199 F.Supp. at 766.

Clearly, Li v. Chertoff is the better decision, and naturalization examiners ought to be taking into account other factors besides the four factors set forth in 8 C.F.R. § 316.5(c)(1). What if the accompanying spouse of the rotational executive is pregnant with complications and both are unable to return to the US within 180 days? Should this not be considered a relevant factor? After all, the regulation suggests that the evidence that may be used to rebut the disruption of continuity of residence need not be limited to these four factors. In analogous cases involving the abandonment of permanent residence, which can be avoided if the trip abroad was temporary, the term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

See Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Chavez- Ramirez v INS, 792 F.2d 932 (9th Cir. 1985).

The Second Circuit, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” See Ahmed v.Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002); see also Hana v. Gonzales, 400 F.3d 472 (LPR status not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize).

Practitioners should creatively argue on behalf of their clients that unforeseen events may have delayed a return back to the US in less than 180 days. Moreover, even if one’s intent is not relevant in determining disruption of residence, unlike the law on abandonment of permanent residency, these decisions can still be helpful to argue that there were relevant factors to assess whether or not residence had been abandoned for purposes of naturalization. We should also forcefully argue that working for a US corporation overseas on a temporary basis ought to be a relevant factor and not a negative. See Matter of Wu, 14 I&N Dec. 290 (R.C. 1973) (denial of reentry permit was erroneous since the LPR was employed for an American firm overseas and had successfully applied for preservation of continuity of residence for purposes of naturalization).

Finally, while beyond the scope of this post, always explore if there are other ways to naturalize that would obviate the perpetual anxiety of a permanent resident living outside the US. Under INA § 319(b), spouses of US citizens working overseas for US corporations or their subsidiaries, or in certain other capacities, can naturalize without meeting the residency requirements, Employees working abroad can preserve their residency by filing Form N-470 if, inter alia, they work for an American firm or corporation, or a subsidiary thereof, that is engaged in the development of foreign trade or commerce of the US. But in order to be eligible, the applicant must demonstrate one year of actual unbroken physical presence in the US after acquiring permanent residency. Matter of Graves, 19 I&N Dec. 337 (Comm’r. 1985); Matter of Copeland, 19 I&N Dec. 788 (Comm’r. 1988). Very few can meet this requirement as even a brief day trip to Canada during that one year period will disqualify the applicant from filing the N-470 application. Remember what an N-470 will do and what it will not do. If approved, the N-470 means that concerns over continuity of residence can be put aside. However, all other substantive requirements for naturalization, including satisfaction of physical presence requirements still must be satisfied. The N-470 may avoid disruption of continuity of residence but your client could still be deemed to have abandoned permanent resident status. That is where and why the re-entry permit can be a lifesaver especially since, if the issue of green card abandonment is raised when the person returns to the US, contrary to what you and your client might expect, there is some recent case authority for placing the burden of proof that abandonment did not occur squarely upon the unsuspecting shoulders of the soon to be surprised permanent resident. And if you are out for more than one year, you will need to accumulate another round of 4 years and 1 day to naturalize. 8 C.F.R. 316.5(c)(1)(ii). This could be true even if it was Uncle Sam that prevented your client from coming back sooner. In Gildernew v. Quarantillo, 594 F.3d 131, 133 (2d Cir. 2010) TSA put the permanent resident on a “No Fly” list for a year while he cooled his heels in Ireland. Ultimately concluding that there was no”derogatory information” against him , TSA let him come home but too late to save his ability to naturalize as he had been out of the US for more than one year.

As the immortal philosopher Will Rogers was fond of saying: “Even if you are on the right track, you’ll still get run over if you just sit there.”