Tag Archive for: Immigration Reform

Cyrus Mehta

President Biden Ushers in New Hope on Immigration after Trump’s Destructive and Xenophobic Four Years

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By Cyrus D. Mehta & Kaitlyn Box*

There is much for all of us to be excited about after President Biden’s inauguration on January 20, 2021 when he aggressively rescinded many of Trump’s most damaging immigration actions. We were also relieved to wake up on Saturday morning to find that there was no Friday midnight Trump regulation night aimed to hurt immigrants or put a further roadblock on legal immigration. What a nice feeling after four nightmare years.

On his first day, President Biden proposed bold new legislation and changes to our immigration system and reversed some of the most devastating policies of the last four years.  The Muslim and Africa bans were rescinded with great aplomb. We have written many blogs, here, here and here, for example,  arguing  and despairing how Trump abused his authority under INA 212(f) to ban whole countries, visa categories and millions of immigrants. While it took so much litigation challenging the Muslim ban, which the Supreme Court unfortunately upheld in Trump v. Hawaii,  it was so heartening to see President Biden rescind the ban with the stroke of a pen. The following words from the proclamation brought vindication to all our efforts to confirming how immoral the ban was:

The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.

Beyond contravening our values, these Executive Orders and Proclamations have undermined our national security.  They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over.  And they have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.

On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). Proclamation 10014, signed in April 2020, suspends certain green card applications, and restricts some nonimmigrant visa categories. Proclamation 10052 of June 22, 2020, itself an expansion of Proclamation 10014, curtailed the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the proclamation and were seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. Our previous blog discusses Proclamation 10052 in detail, and another blog discussed the fate of these bans even after the Biden administration takes over. A group of individuals who have been barred from obtaining a visa due to Proclamation 10052 have brought a lawsuit in federal court urging the Biden administration to rescind the ban and resume visa processing. It is sincerely hoped that President Biden rescinds these bans rather than waits till March 31 to allow them to lapse.

Below, is a summary of some of the salutary executive actions that have taken place thus far.

Below is a summary of the legislative proposals:

President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:

  • Provide worker protections and improvements to the employment verification process.
  • Clear employment-based visa backlogs by not counting family members, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
  • Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
  • Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
  • Reform family-based immigration.
  • Increase diversity visas from 55,000 to 80,000.
  • Promote immigrant and refugee integration and citizenship.
  • Prioritize border controls that include technology and infrastructure improvements.
  • Manage the border and provide various resources to protect border communities.
  • Crack down on criminal organizations.
  • Address underlying regional causes of migration.
  • Reform immigration courts.
  • Support asylum seekers and other vulnerable populations.
  • Change the word “alien” to “noncitizen” in U.S. immigration laws.

While it is easier for President Biden to rescind Trump’s executive actions, it will be harder to pass sweeping comprehensive immigration reform through Congress when the Senate is controlled 50-50 by Democrats and Republicans unless the filibuster is eliminated. To pass a reform bill, the administration would need to win the support of at least 10 Republican Senators, a formidable task since many Senate Republicans supported the supported Trump’s draconian immigration policies. See, e.g., Seung Min Kim, Biden to propose overhaul of immigration laws on first day in office, The Wash. Post (Jan. 18, 2021), https://www.washingtonpost.com/politics/biden-immigration-plan/2021/01/18/f0526824-59a8-11eb-a976-bad6431e03e2_story.html. However, there may be a chance for more narrow legislation to pass. Democrats have called for an agreement on the DACA program, for example, or the creation of a pathway to citizenship for essential workers. Biden must also boldly press forward with executive actions if Congress does not pass meaningful reform such as not counting family members under a reinterpretation of INA 203(d) or advancing filing dates so that many more can file adjustment of status applications.

Some of Biden’s executive actions will also be challenged in court, such as the Texas lawsuit objecting to  the 100 day pause on deportations. The suit alleged that the pause violated the president’s constitutional duty to execute the law, and agreement DHS had made to consult with the state of Texas and provide six months’ notice before softening any immigration enforcement policies. It further alleges that the state will face irreparable harm and suffer security challenges at the border because it did not receive advance notice of the pause. This challenge should fail as a prior president cannot bind a new president to an agreement with a state to notify it on any changes in its deportation policy and a state’s objections to federal immigration policy ought to also fail under the preemption doctrine.

As a result of the 60 day pause on pending regulations, the proposed Trump midnight rule that would require secondary employers to also file H-1B petitions has been tossed, which our previous blog had discussed.  The H-1B lottery rule that would select applicants based on wages will likely not take effect until March 21, 2021, which would most probably result in not taking effect this year. The DOL wage rule will still take effect on July 1, 2021 notwithstanding the 60 day pause, and we hope that there will be successful court challenges to this as well as the H-1B lottery rule  as these rules are inconsistent with the Immigration and Nationality Act. See Stuart Anderson, The Biden Administration and What Happens to Trump’s H-1B Visa Rules, https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=1932b7af726b.

All these challenges and obstacles come as no surprise and are inevitable. Still, the fact that we have a new president who has already brought about a sea change in the first few days on how the US views immigrants after Trump’s four nasty years comes as welcome relief.  We look forward to changes that not just reverse Trump’s destructive and xenophobic policies but also usher in transformative changes, both legislative and executive, that can help millions of immigrants and also benefit America.

 

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners P

Cyrus Mehta

Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform

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On July 19, 2017, the Trump administration increased the H-2B cap from 66,000 to 81,000 by promulgating a final rule. H-2B visas are annually capped at 66,000 under the law. Due to an increase in demand of essential workers to serve landscapers, hotels, restaurants and seafood processors each year, the H-2B cap gets hit earlier each year.

Congress provided for a one time increase in FY 2017 through section 543 of the Consolidated Appropriations Act of 2017, signed by President Trump,  which allows the Department of Homeland Security and the Department of Labor to increase H-2B visas this fiscal year based on a complex formula. As a result, the DHS and DOL increased the H-2B cap by 15,000 on July 19. The long sought for increase is too little and is also too late as the 2017 year will be ending by September 30, 2017. The temporary rule also places an onerous standard. Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request for this fiscal year may file under this one-time increase in the H-2B cap.

A day later, on Thursday, July 20, President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. Contrary to media reports, Trump’s businesses sought these H-2B visas for the next fiscal year quota and not under the temporary additional 15,000 H-2B increase for the remainder of 2017. Still, it is quite a coincidence that his businesses sought additional H-2B visas when his own administration issued a rule temporarily increasing H-2B visas a day earlier

The DOL that will process and approve these applications reports to Trump. Once the DOL has issued labor certifications, H-2B visa petitions will need to be filed with United States Citizenship and Immigration Services of the DHS. The DHS reports to Trump. Once the USCIS approves the H-2B visa petitions, the foreign workers will apply for H-2B visas at US consulates in their home countries. The US consulates, who will say yea or nay, are under the purview of the Department of State, which also reports to Trump.

If Trump’s business files for H-2B visas under the temporary 15,000 H-2B quota for the 2017 year, they will have to demonstrate “irreparable harm (that is permanent and severe financial loss), if [they] cannot employ H-2B nonimmigrant workers in fiscal year 2017.” It remains to be seen whether Trump’s businesses can credibly make such a case. Will Mar-a-Lago, promoted as the “winter White House”, which is frequently used by Trump to conduct business on behalf of the United States, and to also entertain visiting dignitaries, suffer irreparable harm including permanent and severe financial loss if it cannot bring in cooks and housekeepers on H-2B visas? If the DOL approved the case for Mar-a-Lago under this heightened standard, it would be hard to pass the laugh test. The heightened standard may even be ultra vires the statute, and it may be interesting to see Trump consider challenging a rule made by his own administration!

Trump’s businesses clearly rely on the H-2B visa. His administration temporarily increased the H-2B visa by 15,000 (even though Trump’s businesses have not yet applied for visas under this increase). The government agencies that will more likely approve rather than deny H-2B visa applications all report to Trump. The move to file H-2B visa petitions for foreign workers also defies Trump’s America First rhetoric that intends to provide jobs to Americans over foreign workers. Indeed, these H-2B visas were filed in Trump’s much publicized “Made in America” week. Just as in every other case where Trump has retained his businesses while serving as president, here too there is a clear conflict of interest if his businesses utilize the H-2B visa program. The conflict will be even more staggering if Trump’s businesses use one of the 15,000 H-2B visas under the temporary increase.

Looking at the bright side, Trump realizes the need for foreign workers on H-2B visas to run his businesses. Although H-2B visas are essential, they only represent a narrow slice of the pie. If Trump does not want this to appear as a conflict of interest, and he is already being accused of being the most conflicted president in modern history, he should view immigration in the same way that he views the H-2B visa program for his businesses. Just as his businesses benefit from foreign workers, so would other businesses as well as the US economy through an expansion of visas. If his businesses cannot hire foreign cooks and housekeepers, the business will not run as profitably and other American workers cannot be hired to manage the H-2B workers. Therefore, the hiring of foreign H-2B workers can create more jobs for Americans. Foreign workers, rather than replacing domestic workers, compliment them. It is this complementariness between American and foreign workers that keeps businesses ticking and profitable.

There are many businesses that are crying out for higher skilled professional H-1B workers. The H-1B visa program is also annually capped at 65,000, with an additional 20,000 H-1B visas for those who have graduated with advanced degrees from US institutions. There is no flexibility to add another 15,000 H-1B visa numbers as with the H-2B visa program. Only Congress can raise the limit, but Trump can persuade Congress to do so. It makes no sense for our universities to educate and graduate top notch foreign students, who then cannot work in the United States because of an arbitrary H-1B cap. If they are forced to return to other countries, they will compete with the United States instead of contributing to it.  US based global corporations must also be given access to tap into pools of global talent so that they can remain competitive, which in turn will benefit consumers in the United States – and ultimately create more jobs for Americans.

There are also entrepreneurs who would love to start up innovative companies in the United States, but there is no startup visa. Instead, the Trump administration just shelved the entrepreneur parole rule that was promulgated by the prior Obama administration. In a podcast where Professor David Hsu of Wharton and I were the guests, we both wondered why Trump really needed to put this rule on ice. It would have benefitted a small group of entrepreneurs, as the threshold of receiving a $250,000 investment was high, but the upsides to the United States could have been tremendous. If one of these foreign entrepreneurs succeeded and his or her startup became a Google, it would result in a paradigm shift in terms of job creation and benefitting US competitiveness. A lot of immigrants have dreams and they want to start their own business and make it big in the U.S. The rule provided one pathway for immigrants to do so, and by not having it and freezing it, we are being less competitive. America needs to realize that it is not the only game in town. There are other countries that want to compete, and we need to be up there — and we are not, unfortunately, by freezing this rule.

In the podcast, now posted on Knowledge@Wharton, Professor Hsu noted that countries like Canada, France and Argentina have provisions that lower the barriers for immigrant entrepreneurs. Immigrants make up about 12% of the U.S. working population, he added. Among STEM (science, technology, engineering and math) workers, immigrants make up 24% of bachelors and 47% of doctorates, he continued. “So [immigrant entrepreneurs] are punching above their weight in the talent pool for the workforce that we desire in the U.S.,” he said. He pointed to one much-cited statistic: foreign-born entrepreneurs make up about half the founders in the so-called “billion dollar club” of startups that are worth at least a billion dollars each.

President Trump ought to also pay attention to the plight of skilled workers who are caught in the employment-based immigrant visa backlogs, mainly those born in India and China. Eliminating the per country limits or not counting derivative family members would go a long way in alleviating their plight, some of whom are trapped in decades long backlogs. Once they get their green cards, they too will be able to unleash far more dynamism in the US economy.

Finally, even undocumented workers are contributing to the United States. Let’s first start with Dreamers who have received work authorization under the Deferred Action for Childhood Arrivals (DACA) program. I have personally seen my own clients embark on successful professional careers after they received DACA authorization, and thus contribute to their fields and the US economy. At this time, DACA seems to be imperiled. It would be a tragedy if young people with a bright future are deported. Other undocumented workers also aspire to do well for themselves and their families. Deporting DACA recipients could result in a loss of $433.4 billion to our GDP besides being politically unpopular. Trump should lend his support to the bipartisan DREAM Act of 2017. One simple way for the US economy to achieve a 4% growth rate, as President Trump desires, is to take in more immigrants. Adam Ozimek and Mark Zandi at Moody’s Analytics, an independent economics firm, estimated for ProPublica that for every 1 percent increase in U.S. population made of immigrants, GDP rises 1.15 percent. Therefore, a simple way to get to Trump’s 4 percent GDP bump is to take in about 8 million net immigrants per year.

All this might be wishful thinking in the age of Trump, who got an electoral college victory largely because of his rhetoric against immigrants as job stealers and criminals. Trump desires to erect a big wall. He has also imposed a travel ban against countries with mainly Muslim populations. At the same time, Trump has realized the need for the H-2B visa so that his businesses can run more profitably. He obtained the forbidden fruit by raising the H-2B limit from 66,000 to 81,000, which he could do as president of the United States. He also wishes to create more jobs in the United States. What better way to do that is for Trump to realize that more immigration is consistent with his goal for creating more American jobs. Trump changes his mind all the time. At one point, he was against NATO and China, but he is not so today. He should also change his mind about immigrants and immigration, especially now that he has felt the need for H-2B visa workers to benefit his own businesses.

Cyrus Mehta

Immigrant Power: Naturalized American Wins Boston Marathon

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Today is a day to celebrate. One year after the devastating bombings at the Boston Marathon, Meb Keflezighi won the Boston marathon. Keflezighi is a naturalized American. “I’m blessed to be an American and God bless America and God bless Boston for this special day,” Keflezighi said.

Read more here: http://www.star-telegram.com/2014/04/21/5753571/american-meb-keflezighi-wins-boston.html#storylink=cpy

This victory resonates much stronger as it comes one year after the horrific bombs resulted in 3 deaths and over 260 injured. The surviving bombing suspect, Dzhokar Tsarnaev, is also a naturalized American. His brother, Tamerlan Tsarnaev, who got killed in the shootout last year, unsuccessfully tried to naturalize.

In the immediate aftermath of last year’s bombings, Senator Grassley cynically attempted to tie the Boston marathon attacks to immigration reform. “We appreciate this opportunity to talk about immigration reform in light of all that has been happening in Massachusetts, ” said Senator Grassley. Fortunately, the Senate immigration reform bill, S. 744, still got passed, but it included provisions that would make it more difficult for people to get registered provisional status depending on their country of origin as a result of additional security screening,  and another provision would lead to the revocation of asylum or refugee status if the person visited his or her country of persecution without good cause.

Today, after Keflezighi’s spectacular win, against all odds, no one can and should link immigrants to terrorism. Most immigrants are like Keflezighi, who aspire success for themselves and their families. This is the story of immigration, which is also an Americans story, told over and over again.

Even after the 9/11 attacks, and despite the unfortunate profiling of immigrants from certain countries in the immediate aftermath, immigrants still won. Although  immigration benefits, including obtaining a green card through a marriage with a US citizen, are now viewed through the prism of national security, the immigration system was never radically altered. There was no diminishing of the already meager quotas, and immigrants still came and continue to come to America to make it richer and more diverse.

In this context, Keflezighi’s win is most powerful. An American, who was born in Eritrea,  has won the Boston marathon after Lisa Larsen Weidenbach won in 1985 and Greg Meyer in 1983. While an immigrant has won for America today, millions of  immigrants, through their achievements big and small, win for America all the time.

The urgency to reform our broken immigration system is felt more so today when we can be attracting many more Mebs who will not only excel in sports, but also in scientific achievements and creating innovative companies.  The marathon began last year when the Senate deliberated on and passed a comprehensive immigration reform bill. When will the House joins the race to reach the finishing line and help us all win big time for America?

Cyrus Mehta

WHY WE SHOULD ALL BE MAD ABOUT THE H-1B VISA CAP

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The USCIS announced today, April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B regular cap and the  20,000 additional cap for graduates with advanced degrees from US universities. This is much more than the 124,000 H-1B visa petitions the USCIS received in 2014. The H-1B cap makes no sense, and here are 10 good reasons why we should all really be more upset about it this year for the simple reason is that we face the cap each year, and nothing ever changes. Enough is enough!

The first reason to be mad about the H-1B cap is that it forces employers to scramble way before the start of the 2015 fiscal year, which is October 1, to file for H-1B visas, only to get rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in legal and filing fees, along with all the steps they need to take in being in compliance. The whole concept of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style of lottery into the process, just rubs salt into an oozing old wound.

Second, one can only feel for all the foreign national prospective employees, who all need to qualify to work in a specialty occupation, as defined under the H-1B visa law. Out of the 172,500 H-1B cases received, 87,500 people will get rejected. That is 87,500 hopes and dreams dashed. Many who are in the United States after graduating from American universities may have to leave. Others won’t be able to set foot into the United States to take up their prized job offers.

Third, imagine if all of these 87,500  who will be rejected could  actually come and work in the United States. Their employers would benefit and become more globally competitive – and could have less reason to outsource work to other countries. They would have also been productive workers, and spent money in the US economy, including buying houses and paying taxes. The H-1B cap has robbed the economy of this wonderful cascading effect.

Fourth, the USCIS has taken pains to encourage entrepreneurs to establish startups in the United States because of the potential of creating new technologies resulting in more jobs,  and keeping the country competitive. The entrepreneur portal encourages entrepreneurs to use the H-1B visa to sponsor themselves through their own startups. What a pity to lose out on that entrepreneur who could create the next Google or Tesla electric car.

Fifth, immigration attorneys and their staff who toiled away hard for the past few weeks will feel really bad for their clients, and also for themselves that their labor will not come into fruition.

Sixth, people who have lost the lottery will try to come to the United States under other options, which are much harder. They may also resort more to the B-1 business visa, and although the business visa is ambiguous enough to cover activities that go beyond a business meeting, many will fall afoul of the visa wittingly or unwittingly. Using the B-1 visa when the H-1B visa is not available is like engaging in risky unprotected sex. People will get into trouble at some point in time and the party will be over.

Seventh, the While House very recently announced that it would allow a limited number of spouses on H-4 visas the ability to work. The whole purpose is to encourage highly skilled people to work in the United States on H-1B visas. What is the purpose of such an announcement when the cap eliminates the ability of people to enter the United States on H-1B visas in the first place. It all feels like a joke, rather like flatulence, on this day when it was announced that 172,500 people applied for a meager 85,000 visas.

Eight, even the lucky ones who have gotten selected are by no means guaranteed that their H-1B cases will get approved. The USCIS applies rigidly impossible standards, and also reviews the cases unevenly, the California Service Center being far more cruel than the Vermont Service Center. And even those whose H-1B visa petitions get approved may not be issued visas at the US Consulates overseas, especially consuls in India who use the visa process as a trade barrier to curb the flow of Indian IT professionals from making it to the United States.  Then, those who finally make it will also likely get subjected to oppressive green card quotas down the road.

Ninth, one should also really be incensed at Congress for not doing anything about the 65,000 cap since 2003.

Tenth and lastly, even when Congress does get into the act of doing something, it may make things worse rather than better. The H-1B proposals in the Senate bill, S. 744, make the H-1B visa far more difficult to use and have an outer limit of 180,000. In other words, Congress may not be capable of fixing the problem.

Postscript:  I am actually an optimist, but the only way we can bring about positive change to the H-1B visa cap problem, is to collectively get mad about it!

Cyrus Mehta

GOP PRINCIPLES ON IMMIGRATION – A PATH TO LEGAL STATUS

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The Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states:

There will be no special path to citizenship for individuals who broke our nation’s laws that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the US, but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits). Criminal aliens, gang members, and sex offenders and those who do not meet the above requirements will not be eligible for this program. Finally, none of this can happen before specific enforcement triggers have been implemented to fulfill our promise to the American people that from here on, our immigration laws will indeed be enforced

Even if there is no special path to citizenship, the GOP document does not state that such legalized individuals cannot seek permanent residence and citizenship through normal channels within the existing, and most likely a reformed immigration system. While it would be really beneficial for the integration of the nation to have a special pathway to citizenship, like the Senate bill after individuals are put in a provisional status for 10 years and 3 more years as a permanent resident, such a proposal would still be welcomed by those who are out of status or have removal orders, with no other forms of relief to remain in the US. They will be able to live and work freely, and even potentially travel outside the US.  For those who presently lack such basic freedoms, who among them would not readily embrace their new life even if it is not all we or they would have hoped for?  If the existing immigration system is reformed to include more pathways to legal residence, then such individuals can still hope to become US citizens. Indeed, they could also potentially become citizens more quickly than the 13 year special path to citizenship under the Senate immigration bill.

Thus, as explained in our prior blog, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary. The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Many may have adult citizen children or spouses who can petition for their lawful permanent resident status.  Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long under the existing system. Then, there are also few avenues for obtaining a green card. If the GOP cannot provide a direct pathway to citizenship, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.

Whether to have a special pathway is not the only sticking point. The GOP document adamantly refuses to go to conference on the Senate’s immigration bill. Still, the other goals in the GOP principles have much in common with the Senate bill. Border security and interior enforcement must come first, there must be a fully functioning entry-exit visa tracking system, and like the Senate bill, a firm insistence on abandoning the paper-based work eligibility verification system with an electronic version. Such common goals can potentially still result in a compromise between the Senate and the House, even if the GOP document presently states that it will not go into conference on the Senate bill.

Of course, the GOP appears to display a complete dislike for President Obama’s prosecutorial discretion policies – and there will also most likely be a legislative proposal stemming from it that would prevent the President from stopping immigration enforcement. On the other hand, prosecutorial discretion has always existed in law enforcement from time immemorial, and it will be impractical to prevent the Executive from exercising this prerogative. It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system for all these years, any administration, devoid of ideology, would have exercised discretion to remedy the imbalance. People on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 10 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it was wiser for this Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. This happened with the Deferred Action for Childhood Arrivals (DACA) program. The young individuals who have been able to legalize their status have gone onto completing college, getting jobs and benefiting the country.  The GOP document recognizes that it is time to allow children who were brought into country for no fault of their own, and who have no status, to obtain both legal residence and citizenship. DACA is a clear example of how bold administrative action by the Executive, based on prosecutorial discretion, can build consensus around a righteous principle that can ultimately be enacted into law. If the immigration system becomes more viable after reform, there will be less of a need for prosecutorial discretion. Still, there may be some cases that would deserve the exercise of discretion, and this should never be taken away from a President, whether Democratic or Republican, through legislation.

Finally, the GOP document recognizes the need to attract foreign nationals who pursue degrees in American colleges to remain in the US, so that they can use their expertise in US industries that will spur economic growth and create jobs for Americans. “When visas aren’t available, we end up exporting this labor and ingenuity to other countries,” the document states. No one can dispute this.   The GOP document, also takes into account the need for future flows of temporary workers to come into the US legally in order to sustain the needs of the agricultural industry, among others.

All advanced industrial economies throughout the world, including the United States, must confront the prospect of dealing with aging populations and the societal challenges that result. Demographers have a term for those societies where the birth rates have fallen so low that they do not keep up with those who have died:” demographic winter”. Some nations, such as Japan, Italy and Russia are at or will soon reach this state of “demographic winter”.  In the United States, the Census Bureau estimates that, as the massive baby boomer generation slouches towards retirement, the number of elderly people over age 65 could soar to 82 million by the year 2050. Immigration provide the magic elixir , the fountain of youth. Compounded by growing automation, America will have fewer workers to pay for more social benefits to sustain a hugely expanded senior citizen population.  If such demographic projections are correct, continued high levels of immigration will be necessary to provide a large enough workforce to sustain a rapidly aging citizenry. Absent a sudden and unexpected rise in the birth rate, there is no other answer.

It is time that both sides of the aisles compromise to forge immigration reform that would be beneficial to the United States. According to a new Pew Report,  America with a 28% growth rate is in good shape, compared to its economic rivals including China and Brazil, and we have immigrants to thank for this. America can only continue to rely on immigrants to boost its workforce, widen the tax base and support the social security net if it admits more immigrants through immigration sensible reform. The GOP document does provide some chance for this to happen in 2014.

There is a larger reason beyond the merits of the House GOP proposals why all sides should welcome this statement of principles as a step in the right direction.  It is vitally important for America to remain a healthy and functioning democracy that it have a political system where both major political parties accept the complexity of governing and confront the challenges of modernity. We tend to forget it now, and so do they, but the Republican Party was born in protest. The political expression of the Northern revulsion against the Dred Scott decision, the GOP embodied an aggressive nationalism that helped to usher America into the modern era. For some time now, there has been a civil war within the GOP over immigration between those who viewed immigrants as an asset to be maximized versus those who saw it as a problem to be controlled. There are historical antecedents for both camps. The pro-side can look back to Theodore Roosevelt, the first modern Republican president who was an outspoken advocate for the immigrant masses of the early 20th century while the nativist wing finds their ancestral justification in 1924 Immigration Act whose purpose and effect was to go back to the America of 1890 before the tsunami of Jewish and Catholic migration. Just as America needs true immigration reform, it needs both the Republican and Democratic Parties to be national in scope and outlook. What happened today is step in this direction. As the refugee Austrian actor Paul Heinreid (Victor Lazlo) tells Humphrey Bogart (Richard Blaine) in the immortal movie “Casablanca”: “Welcome back to the fight. This time I know that our side will win.”

Cyrus Mehta

The Ambiguous B-1 Visa: Lessons Learned From the Infosys Settlement

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Infosys is one of India’s most storied IT companies with a roster of impressive clients in the US, including named Wall Street Banks, Silicon Valley companies, retail chains, insurance companies and manufacturers. With a footprint all over the world and known for its integrity and probity, it thus came as a surprise that the United States accused Infosys of malfeasance in procuring visas for its foreign national employees to come to the US.

The US Attorney’s Office for the Eastern District of Texas, in conjunction with the Department of Homeland Security, launched an investigation in 2011 into Infosys’s alleged misuse of B-1 business visas. The investigation was spurred by a whistleblower’s law suit that made similar allegations, which got dismissed. On October 30, 2013, Infosys reached a settlement agreeing to pay a civil fine of $34 million to the US government, the biggest fine ever paid for an immigration case, but did not admit to the allegations of fraud and malfeasance.

There are plenty of lessons one can take away from the Settlement Agreement upon an objective review. Despite the seriousness of the allegations, Infosys did not incur any criminal liability. For instance, the government accused, among other things, the IT giant for bringing its employees on B-1 business visas to the United States to actually perform work. The government further accused Infosys of generating invitation letters to US consular officials indicating that their purpose of travel was for “meetings” and “discussion” when the true purpose was to work in the US, which can only be performed under the more onerous H-1B visa, such as coding and programming. Infosys, on the other hand, countered that it has always used the B-1 visa for legitimate purposes and not to circumvent the H-1B visa. Infosys also stated that the Department of State’s Foreign Affairs Manual permits other activities under the B-1 visa provided that they are incident to international trade or commerce, including those alleged by the US to be improper, such as coding and programming. The government also accused Infosys of directing its employees to misrepresent that they would be performing work at the location stated on the Labor Condition Application (LCA) underlying the H-1B visa petition, when they would actually be going to work at another location. Infosys also denied this accusation. Infosys, however, admitted to violations concerning its obligations to verify employees on form I-9. Still, despite the denial of any fraud or malfeasance, Infosys paid a humongous fine of $34 million.

It was indeed the ambiguity in the B-1 rules that snared Infosys and it was the same ambiguity in the B-1, which ultimately saved it from criminal liability. This is evident in the statement of the lead prosecutor in the case, Shamoil Shipchandler, who is quoted in a Wall Street Journal article:

“It’s not 100% clear what someone who holds a B-1 visa can actually do,” he said. For example, placing someone within a company for six months to do in-house tech support is an improper use of a B-1 visa. But if a consultant helps refine software during a meeting with a client, as part of a larger project, that could be seen as an appropriate use of a visitor visa, Mr. Shipchandler said. “It’s a murky area, but for our purposes they misled consular officials.”

As we noted in a prior blog on the B-1 category, the B-1 business visa remains one of the “most ill-defined” visas but plays a very important role in providing flexibility to business travelers. While the B-1 visa is associated with visiting the US to participate in meetings and negotiate contracts, it can have broader purposes. For example, the “B-1 in lieu of H-1B” was created to facilitate travel to the US of individuals who would otherwise qualify for an H-1B visa, but only needed to come to the United States for a limited period of time. In the current controversy over the B-1 visa, scant attention has been paid to the “B-1 in lieu of the H-1B,” which permits broader activities than the regular B-1 visa, albeit for a short period of time. Indeed, many of the activities that have been alleged to be outside the scope of the B-1 may be permissible under the “B-1 in lieu of the H-1B.” The case law with respect to business visitors only adds to the confusion over the definition of “business” in the US.  In Matter of Hira, 11 I. & N. Dec. 824, the Board of Immigration Appeals (BIA) held that the term “business” does not include ordinary labor for hire, but is limited to intercourse of a commercial character. The BIA concluded that an alien entering with a B-1 visa to “study the US business market”, who on behalf of his employer (a Hong Kong based manufacturer of custom made men’s clothing), took orders from, and the measurements of, prospective customers in the United States whom he did not solicit; and who then sent the orders, together with the purchase price, to his employer overseas, was engaged in “intercourse of a commercial character,” and was eligible for B-1 visitor for business classification. The BIA specifically stated that Hira’s sojourn in the US was of a “temporary character” and he clearly intended to continue his foreign residence at the termination of his authorized stay. The profits of Hira’s B-1 activities also accrued to the foreign entity. The BIA, however, also clarified that the nature of the business activity itself need not be temporary. The BIA held that for B-1 purposes, the business relationship may be of a continuing or long standing nature. The only condition in this respect is that each visit be temporary in duration. While applicants can make their best case under the ambiguous standards of the B-1 visa in a forthright manner, deception and malfeasance can never be tolerated.

Even though Infosys is allowed to continue to access US visas in the future under the settlement, which also expressly ensures that past investigations  or alleged wrongful conduct will not be used to prejudice future applications, this episode is a wakeup call for others to ensure that corporations exercise good governance with respect to immigration matters. There is bound to be stricter scrutiny in the future of all applicants, and there is little doubt that Congress in future legislation may also use the Infosys example to tighten the ability for IT consulting firms to access business and work visas, as it has already accomplished in S. 744. Still, this episode can prove to be a valuable teaching moment for Infosys and other IT consulting firms. One of the conditions under the settlement agreement is that Infosys will provide more detailed description of the activities that will be performed when an applicant applies for a B-1 visa. As the B-1 visa allows a wide range of permissible activities, a best industry practice can evolve to specify the proposed activities in some detail, and the legal basis for them, when applicants apply for a B-1 visa or at the time of seeking admission at a port of entry. As a quid pro quo, it is hoped that the government will also seriously adjudicate such applications on their merits.

The work location indicated in the LCAs of H-1B workers in the IT consulting industry are also bound to change after the initial filing. Interestingly, the settlement agreement does not suggest that the employer file an amended H-1B petition, and instead, only alleged that Infosys did not submit a new LCA covering the new location. In the future, employers should immediately file new LCAs to cover the new locations after the original location has changed, and make disclosure at the time of applying for a visa or at the port of entry. It may also be prudent for the employer to proactively file LCAs in future anticipated locations, whenever feasible, in case there is a change in the work location, thus obviating the need to submit one after the H-1B petition is already approved. It is further hoped that the government will not insist on the more cumbersome and expensive H-1B amendment, which was not suggested in the settlement agreement.

It goes without saying that employers must also be compliant with their I-9 obligations. While there have been no dearth in enforcement actions for I-9 violations, the action against Infosys was novel as it involved allegations of misuse of the B-1 visa in addition to the I-9 violations, while Infosys countered by saying that its use of the B-1 was proper. Despite the settlement, the scope of the B-1 visa continues to remain ambiguous, although it would behoove employers to articulate the reasons for the B-1 visa in an application and then to have their employees abide by the terms and conditions upon visiting the US.

As noted in a prior blog, it is important too for the end user client company to be vigilant to ensure that foreign national workers assigned to the company are working under the appropriate visa categories. In the event that the end user client has knowledge or encourages activities not authorized under these visa categories, there is potential for the company to be ensnared in criminal liability.  Even short of criminal liability, it is important to make sure due diligence has been done to avoid being caught up in an embarrassing investigation against a partner company. If the end user company urgently needs software engineers through its IT contracting company for a project, a manager within the end user company may be requested to write a let­ter as a client of the contracting compa­ny to justify the need for its employee overseas to visit the US on a B-1 visa. If this letter indicates that the software engineer is required for meetings, or to conduct an analysis of the project to be subsequently worked on overseas (an obviously per­missible B-1 activity), but the actual pur­pose is for the engineer to actually par­ticipate in programming and working on the solution in the U.S., it may come back to haunt the end user company if there is a criminal investigation against the IT contracting company. Therefore, when drafting such a letter, it is important to ensure that the proposed activities discussed in the letter are per­missible B-1 activities, and when the foreign national arrives, he or she engages in activities that are consistent with the listed activities.  Of course, if the foreign national is assigned to perform work at the client company, the end user must ensure that the worker has an appropriate work visa such as the H-1B visa. End user clients must cooperate with the sponsoring employer to post the LCA at their sites.

Some years ago Wal-Mart was criminally investigated for engaging janitors as independent contractors when it knew that they were not authorized to work in the US. The investigation ended with a consent decree in 2005 where Wal-Mart like Infosys did not also acknowledge any wrong doing,  although the practices that have emerged from that episode with respect to ensuring that even employees of independent contracting companies have I-9s have become the gold standard. While its reputation has taken a beating – not to mention that Indian heritage IT firms even if compliant have borne the brunt of intense governmental scrutiny in recent years – Infosys also has the opportunity to develop gold standard best practices in the B-1 and other arenas (such as tracking work sites of their employees under the LCA) to not only comply with the terms of the settlement but to also assure its prestigious clients who must be anxious after the settlement.

Infosys should consider itself fortunate that it did not go down in flames like Enron or Anderson, and has been given another chance. It must seize this opportunity to redeem itself by elevating standards and best practices, which others will follow and which the government will hopefully honor.  In conclusion, the following quotefrom US Attorney for the Eastern District of Texas is worth noting:

“Infosys persuaded me and our partners that they could be fully fledged legal participants in the immigration process of the United States, so we’ll see,” Bales said. He added that Infosys hired American workers and was valuable to the American economy, and “we’re not in the business of putting people out of business when they provide value.”

Cyrus Mehta

AMERICA’S ROLE IN SYRIA AFTER THE CHEMICAL WEAPONS ATTACK AND IMMIGRATION REFORM

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By Gary Endelman and Cyrus D. Mehta

After hearing about the horrific killing of civilians in Syria in a chemical weapon attack, President Obama stated:  “We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.” The United States may resort to this military action alone, even though Britain has backed out, although France too believes that there must be a serious deterrent to discourage the use of chemical weapons again. The potential use of force against another country brings up the specter of Iraq, when we went to went to war on false information that Saddam Hussein had weapons of mass destruction. This time it is different. There is conclusive proof of a chemical weapons attack, and it is sad to see images of rows of bodies of innocent children, which was most likely perpetrated by the Assad regime in Syria.

Still, people are legitimately questioning America’s role and whether it is legal for America to use force without a Security Council resolution. It is a foregone conclusion that Russia, which is a steadfast ally of the Assad regime, will veto any proposal in the Security Council to militarily intervene through a UN force to protect the Syrian people from future chemical weapon attacks. The United States, along with France, is attempting to assert and develop a new legal doctrine to bypass the Security Council, which is that a country can use force to protect the citizens of another country that have been killed, such as in the Syrian chemical weapon attack.  They use the recent example of NATO’s use of force during the Kosovo crisis in 1999 and bypassing the Security Council in the face of a Russia veto, that prevented Milosevic from further slaughtering the Albanians, and which resulted in his downfall. Today, Serbia is a member of the European Union and Kosovo is an independent country. Kosovo is a successful example of countries intervening through force to stop a humanitarian disaster. On the other hand, the world stood by when there was genocide of unimaginable proportions in Rwanda.

No matter what people think, but America still remains the superpower and is expected to lead the rest of the world during such a crises. America will never win universal admiration as a superpower and it will make terrible mistakes, like the Iraq invasion, whose specter still haunts us and inhibits countries today from intervening in the affairs of another sovereign state even in the face of an actual chemical weapon attack that has resulted in the slaughter of thousands of innocents (including 400 children) like insects killed by pesticide.

If America, as a superpower, continues to play the role of a cop in world affairs by virtue of its superpower status, it will have more moral legitimacy to do so if it embraces people from the world through a humane and compassionate immigration system.  It is a system that allows immigrants to quickly integrate and become part of America regardless of their nationality, religion or ethnicity. Even though our immigration system is presently broken and does not permit all deserving people to become legal, American has not en mass deported its 10 million undocumented immigrants.   The world would much rather prefer America as a superpower that embraces immigration than a rising superpower such as China, which may not in the same way as America. In the same vein, if America is trying to develop a new international legal norm, which is the right to protect people and bypass the moribund Security Council, even if one does not agree whether use of force is the only way to protect, America will have more legitimacy to do that if it is still looked upon as the beacon for hope through its immigration system.

At the dawn of the American Republic, Thomas Paine in Common Sense rightly and most proudly proclaimed that “the cause of America is in a great measure the cause of all mankind.” In this fateful hour of decision, with history and our conscience the only sure guide, surely the reverse must be true.  From the time that Thomas Jefferson in the Declaration of Independence attacked King George III for interfering with immigration, since the first Congress enacted the Naturalization Act of 1790, our immigration system has been a symbol of what kind of a people we are and what manner of nation we seek to become.  The many ideological grounds of exclusion in the 1952 Immigration Act eloquently reflected the anxieties and prejudices of the Cold War.  The abolition of the national origins quota in 1965, passed the same year as the Voting Rights Act, testified to the nation’s belief in the promise of equality for all. The Refugee Act of 1980 was the embodiment of our continued commitment to the preservation and promise of America as a refuge for the persecuted and the oppressed. The Immigration Act of 1990 by tripling the number of employment-based visas and creating the national interest waiver reflected a growing national realization that participation in a global economy required an enhanced readiness to accept and admit the best and the brightest from all nations regardless of nationality. An American that readily  embraces immigrants from around the world will be more likely to better understand the world.

Therefore, while the Obama Administration and Congress are involved with Syria, they must not lose focus on Comprehensive Immigration Reform. The Senate Bill, S. 744, which has already passed the Senate, will expand pathways for people to come to the US, and will also legalize more than 10 million people. If the House passes a similar version of S. 744, a reformed immigration system will continue to burnish America’s role in the world.  Perhaps, no other country would have legalized 10 million of its undocumented population ever, regardless of where they have come from, and put them on the path towards becoming Americans. The significance and impact of such an immigration measure would give America more moral legitimacy to speak on behalf of the world and to seek to establish new international legal norms that would protect vulnerable populations from future humanitarian disasters such as the chemical weapons attack we witnessed in Syria. Now, it is our turn to decide if our policy abroad and our actions at home will honor Dr. King’s teaching that “the arc of history is long but it bends towards justice.”

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

Cyrus Mehta

AN IMMIGRATION ATTORNEY’S RESPONSE TO STATEMENT OF USCIS UNION PRESIDENT OPPOSING SENATE IMMIGRATION BILL, S. 744

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Kenneth Palinkas, President of the National Citizenship and Immigration Services Council, the union representing 12,000 United States Citizenship and Immigration Services (USCIS) adjudications officers and staff, issued a statement joining a vocal minority of other government union bosses, most notably Chris Crane of the ICE employee union, opposing the Senate immigration bill, S. 744.

Mr. Palinkas’ statementfunnily reminds me of a Request for Evidence (RFE) that the USCIS routinely issues after it receives an application for an immigration benefit. An RFE typically lists the many real and phantom concerns that the USCIS may have about an application, which this statement does too.  I will attempt to respond to Mr. Palinkas’ statement like one would respond to an RFE, first repeating the concerns of the USCIS in bold followed by my response:

USCIS adjudications officers are pressured to rubber stamp applications instead of conducting diligent case review and investigation. The culture at USCIS encourages all applications to be approved, discouraging proper investigation into red flags and discouraging the denial of applications. USCIS has been turned into an “approval machine.” 

Really! We attorneys always thought that there was a “Culture of No” at the USCIS. I scratch my eyes with disbelief when you say that USCIS has been turned into an “approval machine.” How I wish there was some resemblance to what you say and what we actually experience in our day to day practice.

But seriously, what about all the H-1B and L-1 petitions that are filed, which receive an RFE of several pages, asking for the kitchen sink, even when the occupation is readily a specialty occupation or the position is managerial? Even after we respond with  triple or quadruple the number of pages contained in the RFE (and much longer than the instant response), your officers often deny the petition with a cursory denial. What “approval machine,” Mr. Palinkas, are you talking about?

Actually, whether you like it or not, Congress did indeed make USICS an “approval machine.”  Your mandate is to grant the benefit whenever the eligibility requirements are met through a preponderance of the evidence standard. Congress created certain visas and green card categories because it believed that they would benefit the country. So a culturally unique folk singer should be granted the P-3 visa if she qualifies for it and the manager of a new startup office could also be granted the L-1A visa.  Please do not have any qualms in approving an application if it is deserved under the law, without factoring your own biases in the decision process such as the sluggishness in the economy or the national origin of the beneficiary. That is not your job. In fact, USCIS examiners should look to approving applications after carefully examining the evidence within the legal framework, which many of them do. It is they who are doing a good job!

 

USCIS has created an almost insurmountable bureaucracy which often prevents USCIS adjudications officers from contacting and coordinating with ICE agents and officers in cases that should have their involvement. USICS officers are pressured to approve visa applications for many individuals ICE agents have determined should be placed into deportation proceedings.

Mr. Palinkas, you may not be aware of this interesting paradox in our nation’s immigration laws. One may still be authorized to remain in the United States even though technically deportable.

ICE would probably determine that just about every beneficiary of a visa petition, such as an H-1B petition, who has applied timely for an extension, is deportable during the pendency of the extension request. Still, under 8 CFR 274a.12(b)(2), such a person is  authorized to continue working for the same employer for up to 240 days. Also, a spouse who has applied for adjustment of status based on a marriage petition filed by her US citizen spouse, according to ICE, is technically deportable while the adjustment of status application is pending. This person too is allowed to remain and work in the US while waiting for the green card during the pendency of the adjustment of status application even though the underlying visa has expired.

Does this mean that you would request ICE to start deportation proceedings whenever you are asked to adjudicate a visa extension request and not do your job? Your job, again, as mandated by Congress, is to approve these applications if they qualify under law. In the event that ICE places such hapless aliens in removal proceedings, an Immigration Judge will most likely terminate or administratively close such proceedings, and you will have to continue to adjudicate such cases. Indeed, this will waste more tax dollars than what you complain of below regarding fee waivers.

USCIS officers who identify illegal aliens that, in accordance with law should be placed into immigration proceedings before a federal judge, are prevented from exercising their authority and responsibility to issue Notices To appear (NTAs). In the rare case that an officer attempts to issue an NTA, it must first be approved by a secretive panel created under DHS Secretary Janet Napolitano, which often denies the officer’s request. Illegal aliens are then permitted to remain in the United States as USCIS officers are not able to take action or contact ICE agents for assistance.  

Please carefully review the USCIS NTA Policy Memo dated November 7, 2011, which still gives you considerable authority to issue NTAs, such as when you deny a Form I-751 application to remove the conditions on residence or when you do not approve an asylum case and have to refer it to an Immigration Judge. Consistent with the policy on prosecutorial discretion, which promotes the sound use of limited resources, you are still required to issue NTAs when you see a fraud case, or cases involving non-citizens with criminal convictions or where there is a national security concern. So what’s all the fuss about? You still have plenty to do if you want to put non-citizens in removal proceedings even if your mandate by Congress is to grant benefit applications. I suggest you stay focused and  adjudicate applications, and let others worry about putting folks in removal proceedings.

The attitude of USCIS management is not that the Agency serves the American public or the laws of the United States, or public safety and national security, but instead the agency serves illegal aliens and the attorneys which represent them. While we believe in treating all people with respect, we are concerned that this agency tasked with such a vital security mission is too greatly influenced by special interest groups – to the point that it no longer properly performs its mission. 

Why do you focus so much on “illegal aliens?” I thought the USCIS is required to adjudicate applications so that people may come to the US legally. If you do your job properly, there will be more people in legal status in the US. Nowadays, when you carelessly deny an H-1B extension request that you granted many times before, you place this individual and her family in jeopardy.  All of the petitions that you receive from employers for H-1B visa, L visas or O visas, just to name a few, are for folks who will enter the US legally and who will also clearly benefit our country.

Moreover, an alien has a right to be represented by an attorney when filing an application for a visa benefit, and so I would suggest that you refrain from calling us “special interest groups.” We as attorneys under ABA Model Rule 3.3 and 4.1 are required to file truthful applications on behalf of our clients, along with many other DHS rules at 8 CFR 1003.102 that can sanction improper attorney conduct. Attorneys are required to ethically represent clients, who are applicants applying for immigration benefits, that you must serve efficiently under your Congressional mandate. Indeed, most of the times, attorneys representing applicants and the USCIS can be on the same side, developing interpretations of the law that would be consistent with Congressional intent and facilitate consistent adjudications.  It is a win-win situation for everyone, including the American public, if we can work cooperatively with you!

Currently, USCIS reports a 99.5% approval rate for all illegal alien applications for legal status filed under the Obama Administration’s new deferred action for childhood arrivals (DACA) policies. DHS and USCIS leadership has intentionally established an application process for DACA applicants that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers. These practices were put in place to stop proper screening and enforcement, and guarantee that applications will be rubber-stamped for approval, a practice that virtually guarantees widespread fraud and places public safety at risk.

DACA is the model of an efficiently run USCIS program that is worthy of emulation and replication. There are many USCIS applications procedures that bypass the traditional interview process. Also, if there is an issue, there is nothing to stop the USCIS from inviting the applicant for an interview. You also have your FDNS folks do as much snooping around to their hearts content without regard to counsel being present  Moreover, most DACA applicants can establish their presence in the US through school records and other concrete proof, such as bank statements and even through their Facebook profiles, which could facilitate swift approval.

While illegal aliens applying for legal status under DACA policies are required to pay fees, DHS and USCIS are now exercising their discretion to waive those fees. Undoubtedly these practices will be replicated for millions of illegal aliens if S. 744 becomes law.

I thought there is a regulation at 8 CFR 103.7(c), which allows the DHS to waive fees if an applicant can demonstrate an inability to pay based on stringent criteria. There’s also statutory authority at INA 286(m).  As the head of a union, you are probably going beyond the scope of your position to challenge a regulation that was properly promulgated under the Administrative Procedures Act and the INA. How does a rule legitimately allowing fee waivers for a narrow class of individuals affect the working conditions of your employees in the union? Let’s move on to the next concern in the RFE!

US taxpayers are currently tasked with absorbing the cost of over $200 million worth of fee waivers bestowed on applicants for naturalization during the fiscal year. This is in addition to the strain put on our Social Security system that has been depleted by an onslaught of refugees receiving SSI benefits as soon as their feet touch US soil.

There you go again about fee waivers legitimately applied for under 8 CFR 103.7(c). You gripe about $200 million, but you forget about the immense contributions made by immigrants by way of taxes, purchasing power as consumers, and as entrepreneurs through job creating businesses.  By the way, one of the founders of Google, Sergey Brin, came to the US with his parents at the age of six because they faced anti-Semitism in their native Russia. Yet, you deride refugees who have escaped persecution and legitimately come to the US pursuant to the Refugee Act of 1980 based on the U.N. Convention Relating to the Status of Refugees.  I wonder whether you speak on behalf to the many dedicated USCIS officers who painstakingly determine whether an applicant qualifies for asylum or as a refugee under our obligations under the UN Convention. Do you also forget that America was built since its very inception and made great by people who escaped persecution from other countries? Have you lost sight of our most cherished and enduring symbol that  gave hope to millions when they landed on our shore – the Statue of Liberty?

According to a Kauffman Foundation study, the Startup Visa in S. 744, the bill which you oppose,  could conservatively lead to the creation of between 500,000 and 1.6 million jobs, which in turn could give a boost to the US economy of between $70 billion and $224 billion a year. According to another report sponsored by Cato Institute – The Economic Benefits Of Comprehensive Immigration Reform by Raul Hinjosa-Ojeda, the legalization of 11 million immigrants would be equivalent to more than $1.5 trillion added to GDP over 10 years. Yet you gripe about $200 million.

Large swaths of the Immigration and Nationality Act (INA) are not effectively enforced for legal immigrants and visa holders, including laws regarding public charges as well as many other provisions, as USCIS lacks resources to adequately screen and scrutinize legal immigrants and non-immigrants seeming status adjustment. There is also insufficient screening and monitoring of student visas.

There are thousands of dedicated USCIS examiners who carry out their duties diligently and thoroughly when adjudicating adjustment of status applications. If there is a properly executed Affidavit of Support pursuant to INA 213A, the examiner need not go further under the law. Congress has allowed agencies to sue the sponsor who has executed such an affidavit in the event that the alien seeks welfare benefits. Your allegation that students are not sufficiently monitored is shorn of any basis. What about STEM students whom we want to remain here and who can contribute to US competitiveness and innovation?

A new USCIS computer system to screen applications known as “Transformation” has proven to be a disaster as the agency has spent upwards of $2 billion for a system that would eventually allow an alien – now referred to as a “customer” under current USCIS policy – to upload their own information visa the internet for adjudication purposes. To date, only one form can be accepted into the program that has been in the making for close to 10 years.

If the USCIS were to hire some crackerjack H-1B computer programmers, those same people whose applications you like denying, I think there will be “transformation” in less than 10 months! Finally, and in closing, would you not agree that “customer” is a more dignified term than “alien”?

Cyrus Mehta

Immigration Reform Through Green Card Stories

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Green Card Stories is a gem of a book, and I feel inspired to write about it. Written by award winning journalist, Saundra Amrhein, with stunning photographs by award winning photographer, Ariana Lindquist, the book puts a human face on immigration through the journeys of 50 individuals who got their green cards. My good friends, Laura Danielson and Steve Yale-Loehr, produced the book with a lot of dedication and tenacity. Hopefully, their hard work will reap rewards resulting in more rational and humane immigration laws.

Most Americans, whatever their view on immigration may be, tend to see immigrants whom they may know with a different lens, especially if they are co-workers, friends, neighbors or parents in the same school community. Even if immigrants may be demonized in the current political climate, especially those who are undocumented, when one gets to actually know this person,   you may probably not view him or her with the same bias. This is what Green Card Stories tries to do. One gets to like the immigrants portrayed in the book even if you do not know them in person. In fact, they all magically come alive when you read their stories and the photographs also reveal facets that no amount of words will ever tell.

Take the example of Francis Price, who is photographed as a successful person meditating on his journey in his well appointed home adorned with tasteful art. He came to the US from Jamaica with $25 to become a businessman in the United States who also served as a trustee of the University of Rochester, his alma mater. Somewhere along the way after he received his green card and built businesses employing hundreds of people, he was put into deportation when applying for citizenship because of the mistake of his lawyer in Jamaica who had not finalized his divorce to his former wife. It was thus discovered after several years that he wrongfully entered as the single son of a sponsoring parent when he was actually married. Fortunately, while in deportation, his current US citizen wife again sponsored him for a green card, while he applied for a waiver to forgive the past violation, and the Immigration Judge again granted him the green card.

Or Gulnahar Alam, whom I represented pro bono, who escaped  a horrific domestic violence situation in Bangladesh,  only to find herself working grueling domestic jobs for families in the New York area. She applied for political asylum and won, being one of the first to assert that domestic violence constituted a form of persecution. Today, she is a well known advocate on behalf of immigrant domestic workers, won several awards,  and works for a diabetes education project among minorities at New York University.

There is also the amazing story of Mikel Murga from Spain, who now teaches at MIT, and who got his green card three times. He abandoned his first green card after returning to his country, but gave up the second green card, so that his minor son could accompany him as a derivative under the third green card. While most immigrants are lucky to be able to get green cards just once, Murga is quoted while looking quite the professor in his portrait, “That’s what makes America unique – not how rich it is, they say there are many opportunities, but the most important opportunity is the opportunity to reinvent yourself.” There are 47 other equally inspiring and poignant stories, including one on Jerry Yang who went on to found Yahoo. Read them.

Putting a human face to immigration is the best way to convince others about who they are and the benefits they bring to this country through their struggles, inspiration, ambition and successes. It is also an effective way to counter the lies about immigrants espoused by a loud and vocal minority. The canard against immigrants is an old one.  This is what the first Select Committee of the House of Representatives to study immigration concluded in the 1850s:

that the number of emigrants from foreign countries into the United States is increasing with such rapidity as to jeopardize the peace and tranquility of our citizens, if not the permanency of the civil, religious, and political institutions of the United States… Many of them are the outcasts of foreign countries; paupers, vagrants, and malefactors….sent hither at the expense of foreign governments, to relieve them from the burden of their maintenance.

One would have thought that this kind of sentiment would have ended by the second decade of the 21st century, but don’t we hear the same things about immigrants today?  Today, it is fashionable in some quarters even by Presidential candidates, members of Congress and state officials to espouse attrition by enforcement, which is a policy to make life so harsh, brutish and unbearable for undocumented immigrants that they will “self deport” themselves. Acknowledging that it would be very costly, if not impossible, to deport the millions of undocumented immigrants, a May 2005 report of Center of Immigration Studies, an anti-immigration organization, writes this in support of attrition:

But there is a third way that rejects this false choice, and it is the only approach that can actually work: Shrink the illegal population through consistent, across-the-board enforcement of the immigration law. By deterring the settlement of new illegals, by increasing deportations to the extent possible, and, most importantly, by increasing the number of illegals already here who give up and deport themselves, the United States can bring about an annual decrease in the illegal-alien population, rather than allowing it to continually increase. The point, in other words, is not merely to curtail illegal immigration, but rather to bring about a steady reduction in the total number of illegal immigrants who are living in the United States. The result would be a shrinking of the illegal population to a manageable nuisance, rather than today’s looming crisis.

This is analogous to the approach a corporation might take to downsizing a bloated workforce: a hiring freeze, some layoffs, plus new incentives to encourage excess workers to leave on their own.

This attrition by enforcement policy has spawned draconian anti-immigration laws such as Arizona’s SB 1070 and Alabama’s HB 56, which aim to banish undocumented immigrants from the state even though they may be pursuing legal status under federal law or legitimately defending themselves in federal removal proceedings. Their goal is to make it a crime if it is suspected that a person is in the state unlawfully (even though under federal law some may remain in the US), for not carrying documentation, and for harboring and transporting unauthorized immigrants. HB 56 goes further by requiring children to provide proof of immigration status prior to enrollment in public schools, and restricting unauthorized immigrants from engaging in contracts and business transactions. Many of these nasty provisions have been temporarily blocked for now, but they can gain a new lease of the life if the US Supreme Court upholds the constitutionality of such laws later this year.

Tellingly, many of the people profiled in Green Card Stories could have been snared under these draconian state laws or stricter federal laws prior to getting their green cards. Their stories also show how terribly complex our immigration laws can be, and how easily someone can fall through the cracks. Even while there may be anti-immigrant sentiment, what is most touching in many of the stories is how they were helped by the kindness of strangers in America, which has left a lasting impression on them. The more stories we tell about immigrants desiring to do well in America for themselves and their children, the less scope will there be for politicians and hate groups to dehumanize them in the abstract. After all, immigrants are people, like everyone else, with the same dreams, aspirations, vulnerabilities and frailties. The policies of attrition and self-deportation view undocumented immigrants as vermin that can be quietly driven away notwithstanding the fact that they have loved ones here and have set down strong roots. However, this is less likely to happen if Americans get to know them more from their stories. It is only then that more Americans will come to realize that the better solution is to reform our broken immigration system that would be able to tap into the industry and aspirations of immigrants of all stripes, such as the ones in Green Card Stories, rather than to deport them – and everyone will be better off.