Both books are phantasmagorical journeys through parallel universes -- a fitting description of America's unique form of unreality, its extreme ambivalence toward immigration. Unlike insular and homogeneous Japan, the locus of 1Q84, where immigration is severely restricted, the U.S. imagines itself as welcoming.  We pride ourselves on our diversity and tolerance, our freedoms of thought, religion, press and assembly, and our American Dream mythology.  Yet all around us we see behaviors and attitudes toward immigration -- even in the same individuals -- that are inconsistent and contrary to type. 

I first witnessed this phenomenon at a bar liaison committee meeting with Immigration and Naturalization Service (INS) officials in Los Angeles shortly after enactment of the Reagan-era legalization program, a key provision in the Immigration Reform and Control Act of 1986 (IRCA). To qualify for legalization, a nonimmigrant entrant's unlawful status must have been "known to the government."  INS officials wanted the pool of eligibles kept small; the immigration lawyers wanted it as large as possible.  Attitude reversals manifested immediately.  What -- before IRCA -- the INS would view as major transgressions of the immigration laws, say, working without permission, these same officers now saw as "no harm, no foul" occurrences unless an unauthorized foreign worker wrote a letter confessing the violation that actually found its way into the individual's INS file.  Conversely, the immigration lawyers latched upon what we'd previously viewed as peccadilloes -- failing to file a change of address report -- as serious misdemeanors. 

Consider also these recent examples:

• Mormon and Catholic Republican presidential candidates, both sons of immigrants (Mitt Romney and Rick Santorum), oppose the hospitable treatment of the undocumented as espoused by leaders of their respective faiths and instead urge a cynical and cruel policy of "self-deportation";
• President Obama, the American son of a black Kenyan (whom, as a student, the old INS, with the help of collusive Harvard officials, hounded out of America for dating a white woman), offers "late to the party," half-hearted support for administrative immigration reforms readily within his grasp;
• Elton Gallegly, Republican Chairman of the House Immigration Subcommittee, assails birthright citizenship, yet tries to sidle up to pro-immigration business interests by expressing concern over the dramatic increase in L-1 work visa denials at USCIS;
• This blogger now presents a sincere mea culpa for intemperateness and imprecision in using the term "cannon fodder" in a preface to a guest post and decrying "the hypocrisy of sending 'expendable' youth into harm's way," thus causing some to reasonably infer that I was criticizing the U.S. military when my targets in fact are the politicians who support a military-only version of the DREAM Act; and
• The inconsistent American people who say they want stiff controls on immigration yet welcome the undocumented gardener and the nanny into their backyards and homes.

Murakami speaks to this phenomenon in 1Q84 when he has the Leader, who heads a violent cult, say:

Most people are not looking for provable truths. . . . [T]ruth is often accompanied by intense pain, and almost no one is looking for painful truths.  What people need is beautiful, comforting stories that make them feel as if their lives have meaning.

Immigrants are not memes; nor are the painful truths about immigration.  Yes, despite the flaws in a recent governmental investigation, immigration fraud does exist -- though probably not even close to the degree that the Inspector General for Homeland Security suggests.  Yes, many immigration and consular officers may operate on hidden agendas of Machiavellian proportions and deny cases unjustly, but others truly care that they make correct decisions based on law and fact.  Yes, immigrants bring energy, entrepreneurship, innovation and wealth to America, but some of our citizens -- particularly at the low end of the skills range -- may be displaced (and thus need extra help).

We as a people and a polity will not eradicate every scintilla of possible harm from immigration nor enjoy solely its benefits.  We must face the immigration truths, however painful, and eliminate as many dysfunctions as bright minds and compassionate hearts can achieve.   What we cannot do is continue to believe in "beautiful, comforting stories that make [us] feel as if [our] lives have meaning" but at bottom are palliative falsehoods.

[Blogger's note:  This week’s guest blog is by Steve Yale-Loehr, a good friend who teaches immigration law at Cornell Law School and co-authors the leading U.S. immigration treatise. Steve has just finished co-editing Green Card Stories, a book that features dramatic narratives of 50 recent U.S. immigrants—each with permanent residence or citizenship—in compelling essays by nationally recognized journalist Saundra Amrhein and exquisite portraits by award-winning documentary photographer Ariana Lindquist.

Steve addresses pragmatic, legal and moral questions raised by GOP proposals that would drop the option of pursuing higher education and instead require DREAM Act youth to serve in the military as the only way to attain legal status. 

Reading Steve's post, I am reminded of the despicable term, "cannon fodder," and the hypocrisy of sending "expendable" youth into harm's way, where many lives will likely be cut short, wasted in wars started by their elders.

Shakespeare penned it best when he had the cynical Falstaff say in Henry IV, Part I:  "Food for powder, food for powder; they’ll fill a pit, as well as better."

A military-only DREAM Act -- more aptly dubbed the NIGHTMARE Act -- sends a terrible message.  Congress should keep the education-option available to innocent men and women (brought here by their families) who by any definition -- other than in law -- are Americans all.

Blogger's postscript to his note: I must apologize for having used the term "cannon fodder" and suggesting that some might view soldiers recruited through a military-only version of the DREAM Act as "expendable."  I now understand and regret that reasonable readers might view this as a criticism of the U.S. military. My intent was to criticize politicians not our armed services.]

DREAM or NIGHTMARE?: 

Why Congress Should Reject a Military-Only Version of the DREAM Act

By Steve Yale-Loehr

First proposed in 2001 by Senators Orrin Hatch (R-UT) and Richard Durbin (D-IL), the Development, Relief and Education for Alien Minors (DREAM) Act would allow certain undocumented noncitizens a chance to legalize their status by going to college or serving in the military. Since then it has been introduced regularly both as a stand-alone bill and as part of comprehensive immigration reform bills, drawing bipartisan support each time in both the House and Senate. The closest it has come to enactment was in 2010, when it passed the House but failed to get through the Senate.

Congress has watered down the DREAM Act over the last decade.The original 2001 version would have granted permanent resident status (green cards) to any undocumented child who had been in the United States for at least five years, as long as they had good moral character and were attending a college or university.

By contrast, the Senate’s 2011 version of the bill would require individuals to have entered the United States before they were 15; have graduated from a U.S. high school or received a GED from a U.S. institution;be under 35 on the date of enactment; and have lived in the United States for at least five years. Prior versions of the bill did not include an age cap. Similarly, the current version of the bill would require beneficiaries to stay in conditional resident status for six years before they could get permanent green cards. Early versions of the DREAM Act would have immediately granted green cards to individuals who met the bill's requirements.

The current version would also make applicants subject to more grounds of inadmissibility, deportability, and other restrictions. Some want to water down the DREAM Act even more.Republican presidential candidates Mitt Romney and Newt Gingrich say they would support a DREAM Act — but only for young immigrants who join the military. Representative David Rivera (R-FL) has introduced a bill along similar lines.

Problems with a military-only DREAM Act range from the practical to the philosophical. For example, Representative Rivera’s bill would require people to enlist within nine months; otherwise they would lose their eligibility under the bill. The bill fails to realize, however, that people can’t start the enlistment process until they are legal and have a social security number. It can take longer than nine months to complete the enlistment process, and the military services have annual quotas that get filled quickly when the economy is bad, forcing people into the next fiscal year.

In addition, some potential enlistees may fail to qualify for medical reasons. Suppose someone gets temporary status under the Rivera bill, tries to enlist, and turns out to be colorblind. Do we tell them, "Sorry, we are deporting you because you are colorblind. No refund of the immigration fees you paid to start the DREAM Act process"?

The call for a military-only DREAM Act also poses moral problems. It effectively tells undocumented noncitizens that they are only useful for war, not for improving our economy through their hard work or inspiring the next generation by teaching in our schools. Those professions are just as noble as fighting for our country. As a new book, Green Card Stories, points out, people who legalize their status help this country in a variety of important ways.

Proponents of a military-only DREAM Act also forget the economic benefits of enacting a broader bill. For example, A 2010 study by the UCLA North American Integration and Development Center estimates that the total earnings of DREAM Act beneficiaries over the course of their working lives would be between $1.4 trillion and $3.6 trillion. Similarly, a 2008 study from Arizona State University found that an individual with a bachelor’s degree earns approximately $750,000 more over the course of his or her lifetime than an individual with only a high-school diploma. In these tough economic times, we need the earnings of everyone in this country as much as we need their military service.

Langston Hughes once wrote:

What happens to a dream deferred?

Does it dry up like a raisin in the sun? 


Or fester like a sore and then run?

Does it stink like rotten meat?

Or crust and sugar over, like a syrupy sweet?

Maybe it just sags like a heavy load.

Or does it explode?”

Politicians should watch out. Trying to dilute the DREAM Act may backfire on them and cause DREAMers to explode in widespread demonstrations and cries of outrage, if necessary to enact a true DREAM Act.

I hesitate to criticize the Obama Administration's immigration reform measures, having urged long ago that half a loaf, at least for now, will perforce suffice. 

Hastily announced but untimely in manifestation, the slew of executive half-measures the President's team has lately proposed to improve the functioning of America's broken immigration system seem reminiscent more of vaporware than tangible solutions. 

With less than a year to go on his term, executive orders and departmental or agency press releases are spewing forth as if from a Gatling gun. 

Will these concepts really make a difference?  Or are they merely pheromones to attract progressive, young or Hispanic voters in November?

Consider how much has been said but so little done:

• Prosecutorial Discretion is announced as a measure to spare low-level immigration violators and slam dangerous foreign felons.  So far the record deportations continue almost unabated and the few granted PD are permitted to remain at the pleasure of the President but without deferred action and its benefit of work permission.
• Stateside waiver processing for immediate relatives of U.S. citizens whose hardship can be proven as extreme is revealed in a seemingly humanitarian Notice of Intent and an FAQ.  But no rules or procedures have yet been published, and the risk of death-by-visa-waiting remains as high as ever.
• An interdepartmental push to improve visa processing and promote tourism is inscribed in an Executive Order, with special focus on increased consular officers in Brazil and China.  Still, nothing is said about tourists and business visitors from India whose rupees are as easily converted to dollars and spent in our malls.  Worse yet, no reforms are made by the State Department that would moderate consular absolutism and encourage visa officers -- by amendment of the Foreign Affairs Manual -- to extend a welcome mat more often to foreign visitors with lucre to spend.
• A DHS grab bag of small measures are announced with the goal "to retain highly skilled workers." These ethereal proposals will likely affect only a tiny slice of the job-creating nonimmigrant population. The list of unrealized hopes includes a nebulous assemblage of H-4 dependents married to H-1B workers "who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S."  It also makes note of the leisurely first convening on February 22 of an "Information Summit [at an undisclosed location] in Silicon Valley, CA [where is that? I can't find the city on my California map], that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies [first announced on August 2 of last year as step one of the Entrepreneurs in Residence program] to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent."

Desultory blather and high-falutin' promises will not jumpstart job creation. Deeds not words -- published forms, specific eligibility criteria and actual procedures to request new benefits -- are what real administrative reforms require.   

There are many bold steps that could be taken to improve our dysfunctional system even while Congress remains comatose.  Gary Endelman and Cyrus Mehta suggest a Presidential tweak in the interpretation of green-card counting procedures that would eliminate backlogs and do far more than merely granting spousal work permission "to retain highly skilled workers" ("Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen").  Other proposals have been offered in this blog ("Executive Craftsmanship: Job Creation through Existing Immigration Laws," "The Immigration Appeaser-in-Chief Should Try Some New Ammunition" and "Immigration Reform with the Stroke of a Pen").

When it comes to executive action on immigration, the nation needs a profile in courage not a silhouette of timidity.  The first Tuesday in November is fast approaching.  Time waits for no President.

Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
2. Distinguish boilerplate from customize text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this blog post, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.

Many thoughts rushed through my mind as I read the heartening headline to a press release issued January 19 by the American Immigration Council ("U.S. Citizenship and Immigration Services Takes Steps to Improve Noncitizens’ Access to Legal Counsel"). 

What did USCIS do to improve access to lawyers?  Did it instruct the agency's Fraud Detection and National Security Directorate that no site visits could be conducted without prior notice to the parties' attorneys of record?  Did it decide that FDNS could not interrogate employers and foreign workers unless their counsel were present?  Did the agency instruct USCIS personnel stationed abroad at American embassies and consulates that lawyers must be allowed to accompany clients into the interrogation rooms?

Swept up by curiosity, I skipped the press release and clicked on the hyperlink to the USCIS interim policy guidance pronouncing in red ink: "This memo is in effect until further notice." As I read through the guidance, disappointment set in and two thoughts entered my mind: 

1. The American Immigration Council (AIC) must have come down with a mild case of Stockholm Syndrome.  Apparently the Council had become so captivated by USCIS that this highly regarded nonprofit seems to have mistaken "a lack of abuse . . .  for an act of kindness."
2. USCIS has assumed the role of Senator Daniel Inouye during the Iran-Contra hearings when attorney Brendan Sullivan famously replied to the senator's complaints about the lawyer's interjections,  "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job." 

The AIC's misleading headline notwithstanding, the "new" USCIS policy guidance does not really break new ground in its dealings with lawyers.  While the policy -- to be sure -- quite laudably clarifies and limits the roles of non-lawyer representatives and attorneys admitted in foreign countries, and makes sure that notices are sent to both the attorney and the client, the interim guidance fails to "improve" clients' access to members of the bar licensed in any of the 50 states. Indeed, in some respects, it makes matters worse.

The prior policy, reflected in the Adjudicators Field Manual (AFM), provided: 

Chapter 12 Attorneys and Other Representatives.

12.1     [Reserved]
12.2     [Reserved]
12.3     [Reserved]
12.4     [Reserved]
12.5     [Reserved] . . .

15.8 Role of Attorney or Representative in the Interview Process. Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel: 

• Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) is part of the record.
• The attorney’s role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. . . .
• Officers should not engage in personal conversations with attorneys during the course of an interview. (Bolding added.)

The interim policy guidance substituted the foregoing with this new instruction:

The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected. . . .

Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.

Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview.

An applicant or the applicant’s attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file. . . .

The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. . . .(Bolding added.)

Note that under the former AFM provision a lawyer "may advise his client(s) on points of law". 

This express statement of the lawyer's role is inexplicably omitted from the new guidance.  Now a lawyer may merely present written evidence,"ask clarifying questions," and "raise an objection on an inappropriate line of questioning."  

The new guidance, in my view, offers a powdered-wig view of law and improperly circumscribes the conduct of lawyers.  Fortunately, however, the real-world interactions between USCIS examiners and immigration attorneys have not been quite so constrained.  Experienced examiners know that a lawyer can help lead to a just outcome in many an immigration case, for example:

• when helping to explain why a complex corporate structure involving multiple tiers of entities overseas and in the U.S. qualifies for EB1-3 Multinational Executive or Manager immigrant visa classification;
• when showing in a family-based immigration case that a divorce would be recognized under foreign law such as (heaven-forbid) Sharia law;
• when demonstrating that an EB-5 immigrant investor satisfies the requirement that he or she be engaged in the direct management of the enterprise merely by serving in the role of limited partner under 8 CFR § 204.6(j)(5)(iii).

The new USCIS guidance urges examiners to "remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable."  I maintain that an adjudicator is equally duty-bound to apply the law to the facts, and that a lawyer should be expressly allowed under revised policy guidance to play a role in helping the examiner fulfill this duty.

The USCIS should also expand its guidance by taking into account the suggestion of the Alliance of Business Immigration Lawyers in a white paper presented to the agency:

All Interested Parties Must be Allowed a Right of Meaningful Participation in Requests for Immigration Benefits and in Administrative Appeals.

Under current law and regulations, many parties with a tangible legal interest in the outcome of an immigration-benefits request have no right to make an appearance in person or through legal counsel before USCIS.

As immigration law has evolved, legislation and regulations have increased the actual and potential conflicts of interests. As a result, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

• beneficiaries of an I-129 or an I-140 petition (who currently cannot get a copy of the petition to show that they were in compliance of the law, to qualify under the 245(i) grandfathering provisions, or to port to an approved Employment based petition);
• Regional Centers in EB-5 immigrant investor petitions, which cannot enter appearances to demonstrate that their investments qualify under the initial EB-5 determination or the removal of conditions phase, even though an RFE might challenge the Regional Center’s investment or its job-creation calculation;
• the corporate employer in the success of its foreign workers’ I-485 adjustment of status cases or the workers’ family members’ applications for extension or change of status, as the employer may be injured by loss of the employee’s services; and
• the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant.

The G-28 — indeed, the USCIS’s regulations and the [Immigration and Nationality Act] — should be modified to recognize and allow separate legal representation of each of the parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration matters. That USCIS’s current technology infrastructure lacks the capacity to provide notices, decisions and correspondence to multiple parties in interest and their respective attorneys is no reason to deny procedural and substantive due process.

As a starting point toward ensuring "meaningful participation in requests for immigration benefits," the USCIS should proclaim that lawyers are not potted plants to be carried into interview rooms by their clients. 

Rather, the agency in revised guidance should affirm that immigration lawyers, as officers of the court, with a duty of integrity and honesty in USCIS proceedings, are essential participants in assuring that the rule of law is observed and justice done whenever petitioners and applicants request immigration benefits.

And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law.  Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.

Rather, the reverential  "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abattoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").

In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). 

In essence, the IG reports that:

• "Immigration law is complex, and USCIS administers benefits of great value."
• "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"
• Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together.  They should rub elbows more often, and ISOs need more fraud-detection training.
• Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications).  Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.
• USCIS guidance on when to request additional evidence is confusing.
• Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.
• There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. 
• The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."
• The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." 
• "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."
• The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. "  

Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection":  

• Wherever possible there must be independent confirmation of the facts
• Encourage substantive debate on the evidence by knowledgeable proponents of all points of view.
• Arguments from authority carry little weight.
• Spin more than one hypothesis - don't simply run with the first idea that caught your fancy.
• Try not to get overly attached to a hypothesis just because it's yours.
• Quantify, wherever possible.

The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud.  Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad.  Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":

The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)

Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.

The IG also erred when it extrapolated from a very small sample of USCIS employees, 147 managers and staff, and received 256 responses to an online survey.  As AILA President Eleanor Pelta has noted:

[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”

Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions.  It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:

Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)

The IG readily acknowledged that inferences drawn from its findings may be unjustified:

[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.

Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).

Also absent from the IG report is any recognition that the benefits made available by Congress  to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")

In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions.  It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. 

To its credit, the leadership at USCIS challenged the IG report on several grounds.  The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:

The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)

Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:

Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.

While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case.  Roxie Bacon, however, offered me a very different and revealing analysis of that matter:

The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . 

Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in ruling on the proper standards of determining eligibility in a case involving the EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigration and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:

It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”

If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:

Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.

We are a Nation of Immigrators, not a nation of suckers.

Usually, the intention to publish a rule is no cause for huzzahs.  But this Notice of Intent is different.  It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file "provisional waiver" applications in the U.S. rather than abroad.

Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act.  Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).

The announcement generated praise from editorialists (a "Common-Sense Immigration Move") and the immigration bar ("the move is . . . smart enforcement because it will reduce the illegal immigrant population and allow [DHS] to better focus its resources on keeping America secure and safe"). However laudable the effort to establish a "provisional waiver" rule that avoids family separation, its scope, regrettably, is limited. It ignores the pain of family separation where the qualifying relative is a permanent resident who suffers hardship no less extreme than a citizen's, and only covers unlawful-presence waivers, even though the immigration laws provide several other inadmissibility grounds that permit an extreme-hardship waiver.

The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage. 

Three articles from The Daily, "a national multimedia iPad publication" subsidized by the Rupert Murdoch empire, reported the leaked contents of a draft DHS Inspector General report commissioned at the behest of Republican Senator Charles Grassley. The Daily articles carry breathless headlines conveying the sense that dastardly deeds are about to be uncovered ("RUBBER STAMP[:] Probe reveals feds pressuring agents to rush immigrant visas – even if fraud is feared," "PUSHING THE ENVELOPE[:]Immigration counsel in conflict-of-interest probe over visa approval," and "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests"). 

The first article is based on a "40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security." The article, citing the IG's draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that "they have been pressured to approve questionable cases, sometimes 'against their will.'”  The IG does not identify any wrong-doers by name.  Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red "APPROVED" rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed "get to yes" campaign. 

The Daily's initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to "get to yes". None of the 75% of adjudicators who disputed the claims of pressure to say "yes" is quoted in the article, only private lawyers who nonetheless believed that "officers are just looking for reasons to deny a case".  The accompanying photo and the "RUBBER STAMP" headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS.  The reporter, moreover, presumes that the griping adjudicators actually know the immigration law  -- even though precious few adjudicators are lawyers. 

I wrote this email to the reporter with a caption, "Much more to the story than you've published," offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG's draft report.  Her answer: "We are not distributing the draft report as of yet, but I’ll reach out to you when I do a followup."  Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) -- the source of the original complaint to Senator Grassley -- is not a high priority. 

The Daily's second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if "a visiting scholar of geography from Mongolia," petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post. 

Although the second article notes the IG's reported belief that her "efforts were not based on reasonable interpretations of the law,” I have my sincere doubts, especially without seeing the underlying case file.  Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability.  On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators' decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning.  In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.

The final article in this trilogy, "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests," shows how politics is played in an election year.  Rather than waiting till the Inspector General completes his report, House Judiciary Committee Chairman, Republican Lamar Smith, is eager to investigate alleged abuses that "threaten 'the integrity of our immigration system.'”

Indignant at the charges, Rep. Smith told The Daily:

“It’s outrageous that administration officials would compromise national security for their own political agenda and gain,” Smith said, pointing out that visa applications often lead to U.S. citizenship. “The president’s most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm.”

(This is the same Rep. Smith who -- in most un-Republican fashion -- has cozied up to the ICE officer's labor union, which "so far [has] not allowed its members to participate in the training" required to exercise prosecutorial discretion properly when enforcing the immigration laws.)

What The Daily's reporting fails to recognize, however, is that the conjured controversy within USCIS is merely an internal employment dispute magnified by a small group of power-mad, disgruntled and insubordinate adjudicators masquerading as whistleblowers who -- like Peter and the Wolf, imagine or fabricate broad-based threats to the immigration system and the nation's security.  In reality, these adjudicators are "mutineers" who use Washingtonian gamesmanship to fight Director Mayorkas "tooth and nail over every innovation and improvement he [has] proposed." 

Imagine what DHS might have done and yet do to improve the workings of the legal immigration system were it not for the spine-chilling howls of riled adjudicators who trump up controversies merely to play out the clock (they hope) till a different administration comes to power -- one that might be pleased to return to the "culture of no." Consider also another type of "Howling" -- one from the 1981 film of the same name, in which a reporter "is sent to a . . . center whose inhabitants may not be what they seem."

As the ocean of time washes 2011 away, the eyes of the immigration world turn once again in heady anticipation to the annual IMMI Awards.  Although not as hyped or well-known as the EMMYs or OSCARs, or as festive as the Golden Globes, this annual offering of plaudits or pickles to the year's best and worst in U.S. immigration provides a Visa-Bulletin's worth of oversubscribed nominees. Our ceremony, however, omits the usual red-carpet strutting, and the sartorial post-mortems by the likes of Joan Rivers and Kelly Osbourne.

Full disclosure: There is no IMMI nominating committee. These are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or Tweet me here. All rants, with expletives deleted, of course, are welcome. If you want other takes on the year just concluded, check out The Christian Science Monitor's "Top 10 immigration stories for 2011," New America Media's "Top 10 Immigration Stories of 2011" or The New York Law Journal's "The Year-End Immigration Roundup for Employers," co-authored by Ted Chiappari and me.

If the year in immigration is not intriguing, then an appointment with a mental-health professional may be overdue, or perhaps Time Magazine's "The Top 10 Everything of 2011" and Fast Company's "The Best And Worst Of Everything In 2011: A Mega, Meta Mashup" will entice (my Fast Company favorite:  "Political Comedian" Will Durst's, "Top Ten Comedic News Stories of 2011").

The 2011 IMMI Awardees

Absentee Executive. President Obama, a two-time (er, two-timing?) IMMI awardee, wins in a new category this year.  He's chanted "We Can't Wait" yet is nowhere to be found on immigration reform.  A summer speech on the El-Paso/Tijuana border where he joked of alligators and moats is this year's only sighting. He's been absent at the helm, unwilling to wield the immense authority of his office to craft executive orders and issue regulations that would improve the functioning of the legal immigration system, help create jobs and enhance our economic competitiveness.

GOP Worst Idea of 2011. A host of contenders vied for this IMMI:  Sen. Lindsay Graham (proposals to abolish "birth tourism," the new euphemism for the discredited "anchor baby"); Rep. Steve King (who spots unauthorized immigrants by their "clothing . . . shoes . . . accidents [accents]" and "grooming"); Herman Cain (the I'm-kidding/I'm-not-kidding suggestion of an electrified border fence); and Michele Bachmann ("the immigration system in the United States worked very, very well up until the mid-1960s," i.e., until the laws changed the ethnic makeup of immigrants to allow more non-Europeans). The not-too-surprising winner is Newt Gingrich who espoused a system of local community boards that would choose which undocumented would stay or be forced to go.  Any idea that causes such polar opposites on the immigration spectrum as Chuck Kuck and Mark Krikorian to agree in rightly calling it hare-brained surely entitles its professorial proponent to an IMMI win. 

Posturing-Impasse-and-Blockage Non-Legislator. With a bicameral legislature of 535 potential nominees who voted that pizza is a vegetable, the choice for this year's IMMI was especially daunting.  Sen. Charles Grassley takes the award hands down. He placed a hold on the Fairness for High-Skilled Immigrants Act -- a House-passed bill designed to avoid an expensive brain drain of foreign students from America that would have relieved persons born in India or China of the up-to-70 years wait for a green card.  (This is the senator's second IMMI -- last year he won the "I-See-Immigration-Fraud-Everywhere" award.)

Inflated Immigration Rhetoric. Secretary of Homeland Security Janet Napolitano wins the IMMI for her over-the-top defense of Secure Communities -- the voluntary/mandatory means of netting far more small-time immigration violators than dangerous felons -- and her empty promises of job creation through legal immigration (which since the Secretary's August proclamation have borne no tangible fruit).

Most Tasteless Poaching.  The animal-rights group PETA (People for the Ethical Treatment of Animals) takes the IMMI cake for its misappropriation of the opposition to Alabama's illegal immigration law, the 72-page HB56, which among the law's many faults turns elementary school teachers into illegal immigration census-takers.  PETA mounted a "No One Should Need Papers—Adopt an 'Undocumented' Mutt Today!" billboard campaign. Frankly, PETA, Fido comes nowhere close on the suffering scale to unauthorized immigrant families.

Why Are We Unwelcoming? This IMMI is conferred jointly on two awardees. The U.S. Consulate in Chennai receives it for lawlessly refusing work visas en masse to applicants from the world's largest democracy and that nation's ultra-hot economy. The second recipient is U.S. Customs and Border Protection (CBP), whose poorly kept records, according to the General Accountability Office, suggest that "more than 4,000 [CBP] officers have not completed the [required] immigration fundamentals, and immigration law . . . courses (emphasis added)." 

Digital Dysfunction. The award might have gone to U.S. Citizenship and Immigration Services (USCIS), the agency that missed a self-imposed end of year deadline for beginning its pilot Transformation program, or, to the Labor Department's Office of Foreign Labor Certification for its frequent system outages that hurt users of its Labor Condition Application software.  But the doozy of IT screw-ups this year goes to the State Department for squelching the dreams of 22,000 foreigners who foolishly believed the Department's notices that they had won the Diversity Green Card Lottery only to learn of a computer error that required a do-over.  

Best Immigration Video.  Although two DREAMers' close-up-and-personal challenge to since deposed Arizona politician, Russell Pearce ("Russell Pearce Freaks Out When Confronted by DREAM Activists"), came near the mark, the IMMI goes to COLORLINES for its 2011 in Review—in 90 Seconds. Don't let the title mislead, this fast-paced collage of video snippets demonstrates vividly and viscerally how racial justice and immigration justice are two facets of the same set of bedrock civil rights:  

Industry Immigration Champions. The IMMI goes in vivo jointly to the entreprenuerial job creators (the "Immigrant Founders and Key Personnel in America’s 50 Top Venture-Funded Companies") and to America's farmers who staunchly opposed federal and state legislative proposals and laws that have frightened away undocumented farm laborers and caused our precious fruits and vegetables to go unharvested.  The posthumous IMMI goes to Steve Jobs who urged President Obama to "let 'any foreign student who earned an engineering degree' stay in the USA on a visa."

Fearless Immigration Hero. The IMMI could have gone to any of the courageous millions who braved family separation, ethnic and racial profiling, detention and the threat or reality of deportation this year.  The most high-profile and pro-active of these, no doubt, is Jose Antonio Vargas, a Pulitzer-Prize winning journalist who outed himself as an undocumented DREAMer in a New York Times Magazine article, formed an immigration-reform organization, Define American, and silently protested when Mitt Romney's handlers prevented him from asking a question at a campaign rally.  

Insistent Inner Voice. The IMMI goes to January Contreras, the USCIS Ombudsman, and her ever-vigilant team of pleasingly squeaky wheels who respectfully turned an array of spotlights on the foibles and shenanigans of USCIS.  Ombudsman Contreras launched the first annual national Ombudsman's conference on immigration in Washington, convened a small business and start-ups listening session in Los Angeles, provided hands-on help in individual cases, and issued a slew of important recommendations that, if fulfilled, would jumpstart job creation and measurably improve the lives and well-being of Americans and would-be citizens for decades to come. 

Dollars for Immigrant Detention.  This IMMI goes to the American Legislative Exchange Council (ALEC) for successfully urging a spate of anti-immigration state laws that grow profits for ALEC members in the private detention and bail-bonds industries while detainees are mistreated.

Shortest Stay Award. No this IMMI doesn't go to the many would-be entrants to the U.S. who were issued CBP orders of expedited removal and turned back at once.  Rather, it goes to Allen Bersin who, with his resignation today, clocked just over 18 months' tenure as head of CBP.

Nativist Enabler. Kris Kobach, Kansas Secretary of State, and ghostwriter for many of the state anti-immigration bills, dubbed by The Daily Beast as "the intellectual architect of the right’s fight against illegal immigration," wins this ignominious IMMI.  

DREAMers Shelved But Not Deferred. John Morton, who heads up U.S. Immigration and Customs Enforcement (ICE), earns half an IMMI for announcing a new policy of prosecutorial enforcement (on serious felons) and discretion (for DREAMers and other undocumented immigrants with favorable equities).  The policy, slow to be realized on the ground, falls woefully short in real-world practice. The other half of the award will be conferred when he amends the policy so that it automatically includes "deferred action" status -- a legal basis for beneficiaries of prosecutorial discretion to obtain a work permit.

Nine, Nein and Now. This IMMI goes to the Supreme Court (laudably) for its rare unanimous (all-nine) vote chastening an immigration tribunal -- the Board of Immigration Appeals -- over the BIA's extra-legal interpretations of immigration law in Judulang v. Holder and (regrettably) for its five-three declaration of "no" to federal preemption in Chamber of Commerce v. Whiting, which sustained Arizona's mandatory E-Verify law. Now, we wait for the eight-Justice decision (with Justice Kagan self-recused) on Arizona's "papers please" SB1070 law to see if the High Court will receive a 2012 IMMI.   

I'm Not Captain Bligh. Alejandro Mayorkas, the well-intentioned lawyer's-lawyer who directs USCIS, earns an IMMI for bringing tangible improvements to immigration-benefits administration.  Ali -- as he prefers to be called -- receives high marks for improving the process of public outreach, the stakeholder vetting of proposed agency policies and decisional templates, the initiation of an Entrepreneurs in Residence program, and the acceleration of naturalization and green-card processing times at the agency's field offices.  His achievements are all the more laudable because he produced this bounty of immigration benefits despite the cadres of internal mutineers who have fought him tooth and nail over every innovation and improvement he proposed.

* * *

That's it for the 2011 IMMIs.  There's always the next 12 months for the coming crop of nominees.  Meantime, to government readers of this blog (you know who you are) angling to win in 2012, it's time to consider an oldie-but-a-still-goodie Nation of Immigrators posting from December 30, 2008: New Year Resolutions for Immigration Officials.

What Are We Paying for? 

USCIS and the I-526 Exemplar Process

By Brandon Meyer 

[Author's Prescript]: In the spirit of fairness and open dialogue, I contacted the Community Relations Department of the California Service Center prior to publication to elicit their comment.  No reply was received. 

USCIS Director Alejandro Mayorkas deserves credit for trying to bring meaningful procedural and operational reforms to USCIS in general and to the EB-5 program specifically.  He has pushed for regulatory clarity, consistency of adjudications, and most notably, the introduction of premium processing for EB-5 petitions.  However, the Director’s hard work and good will are in danger of being wasted by his own organization.  A salient example of how the Director’s own agency actively undermines his initiatives is brought to the fore when considering the sham that is the I-526 exemplar process. 

USCIS Propaganda: 

The concept of the I-526 exemplar petition was introduced by the December 11, 2009 memo on “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38) (the “Neufeld Memo”).[1] 

The theory behind allowing qualifying Regional Center projects to file so-called “Exemplar Petitions” was to improve overall EB-5 processing.  If a project submitted a sample I-526 petition for prior USCIS review and the project did not materially change over time, then the subsequent I-526 petitions were supposed to be processed in a more consistent manner.  At first, exemplar processing was a courtesy provided free by USCIS.  An exemplar was filed and eventually USCIS would issue an approval notice.  Since there was no fee for an exemplar, USCIS did not issue an I-797 receipt notice upon filing.[2] 

Something changed around Fall 2010.  My office filed an I-526 exemplar petition in October 2010, just prior to the implementation of Form I-924 and the attendant $6,230.00 filing fee.  We received an I-797 receipt notice based on this exemplar filing in which the filing was deemed an amendment to the Regional Center’s designation.  Legally, this was not correct.  The exemplar filing neither asked for an expansion of the Regional Center’s area of geographic scope, nor was the filing asking for the addition of a new industrial focus.  The filing was simply requesting pre-approval of a new project in an area where the Regional Center was already established and in an industry for which it was likewise already approved.  So why was this exemplar classified as an amendment?  USCIS was gearing up for the money grab. 

In the intervening two years since the Neufeld Memo appeared, USCIS has said time and again that the exemplar process was meant to improve the adjudication of subsequently filed I-526 petitions. 

The Reality: 

Apologies to the late Edwin Starr and his classic 1969 anti-war song, “War,” but paraphrasing his lyrics provides us with a clear picture of the reality of the I-924 exemplar process as applied by USCIS.[3] 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!  Say it again!” 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!” 

It has become painfully obvious, despite Director Mayorkas’ public comments and USCIS written guidance to the contrary, that USCIS has no intention of honoring its numerous promises to give deference to an I-526 exemplar approval.  EB-5 stakeholders continue to receive Requests for Evidence (“RFEs”) for I-526 petitions based on approved exemplar petitions where there was no change to the project.  The RFEs are questioning aspects of the EB-5 projects, aspects that were reviewed (or were supposed to have been reviewed) during the exemplar process.  So why was the project good enough during the exemplar process, but now magically deficient when serving as the basis of an I-526 petition?  Did USCIS just cash the $6,230 check, put the filing on the shelf for months, then pick it up and send an approval without reviewing it? 

So why is USCIS issuing RFEs for I-526 petitions for project-related questions vetted and approved during the exemplar process?  The Neufeld memo quoted above states on page four: 

“A previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient.”[4] 

The reasons outlined for not giving an exemplar approval deference are fair enough.  However, none of the RFEs for I-526 petitions based on an approved exemplar make of these assertions, nor has the exemplar petition approval been reopened for any of these reasons.  Therefore, USCIS is not following its own guidance. Is this intentional or does the left hand not know what the right hand is doing? 

During the September 2010 EB-5 stakeholders meeting held at the California Service Center, USCIS officials told the audience that stakeholders were going to be happy with the November 2010 introduction of Form I-924, with its $6,230.00 filing fee, as well as the increase in the Form I-526 filing fee to $1,500.00.  How could this be, I asked?  The answer I received was that these astronomical fees would allow USCIS to raise headcount by hiring more adjudicators and more specialist business analysts and economists.  The logical outcome, of course, would be that not only would sluggish, slothful, or glacial processing times remarkably improve, but the quality of adjudications would also improve and become more consistent!  “What could be better?”  “How could you not like these fees?”  “We’re giving you want you want!” 

Well, I was skeptical about this bright-future propaganda that was being force-fed on the EB-5 stakeholder community then, and the events of the past 15 months have confirmed my initial pessimism.  Processing times have not budged one bit.  It still takes USCIS eight months to process an I-526 petition.[5] The quality and consistency of EB-5 adjudication has not improved either.  Stakeholders regularly receive RFEs for specious reasons based on shaky reasoning.  Thus, if these high fees were the solution to the problem of slow and inconsistent processing, the solution has failed. 

During the November 2011 AILA California Chapters Conference, my San Diego AILA colleague Kimberly Roubidoux noted wistfully that when she began her career in immigration law, H-1Bs cost $85.00 and were adjudicated in three weeks by the Vermont Service Center.[6]  Today, H-1Bs can cost up to $3,550.00 in filing fees and the Vermont Service Center now needs four months to make a decision on an H-1B.[7]  Yes, folks, you are paying 41 times more to get something 5 ½ times slower.  Now that’s value. 

As we know, USCIS is mostly funded by user fees and the agency must periodically justify to the U.S. Congress that its fees are appropriate.  Yet, as fees increase across the board, service fails to improve.  How can USCIS continue to justify its fees? Sadly, I would be willing to surmise that USCIS could raise I-526 filing fees to $5,000.00 and I-924 filing fees to $25,000.00 and we would still fail to see any the benefits promised by USCIS during the September 2010 EB-5 stakeholders meeting. 

Yet, despite the failure of increased fees to improve EB-5 processing times and service, Director Mayorkas wishes to implement premium processing for certain Form I-924 applications and possibly certain Form I-526 petitions.  The Director’s rationale is sensible and worthy of support.  Job creation and investment are often on hold while the Forms I-924 and I-526 remain stuck for almost a year each in the bowels of the USCIS California Service Center.  However, Director Mayorkas unfortunately misses the point.  Fees at any level would fail to solve the problem.  The problem is the perverse incentives that USCIS faces when trying to fund its own operations. 

I generally do not subscribe to conspiracy theories.  Conspiracy theories are best left to people who can spends weeks at a time camping out in parks and public squares, protesting whatever it is they’re protesting (these people would benefit immensely from the job creating stimulus of a functional EB-5 program). I will nonetheless offer my own conspiracy theory.  EB-5 stakeholders have noticed an upswing in EB-5 related RFEs (although USCIS would probably dispute this assertion, they always do until the true numbers eventually leak out) and another slow down in processing times that coincides with the Director’s initial announcement that he wished to introduce premium processing into EB-5.  Coincidence?  I don’t think so. 

Another factor driving this upsurge in EB-5 RFEs is also too coincidental to be anything but deliberate.  As referenced above, the EB-5 unit has seen an upsurge in headcount funded by these skyrocketing fees.  The RFEs that question the basis of exemplar approvals tend to be focused on the business plans and economic studies included as part of the approved exemplar petition.  Therefore, I surmise this trend is also intentional as a way for USCIS to justify expanding its headcount in this area, under the “look, just look at these bad business plans and economic studies.  Good thing we hired all these people.  Let’s give ourselves a pat on the back for our foresight.” 

For years, the EB-5 stakeholder community has had to listen to a series of unconvincing excuses as to why premium processing was inappropriate for EB-5.  “Impossible.”  “EB-5s are too complex.”  “We can’t guarantee that we can process in 15 days.”  And my favorite, usually offered in a dismissive manner, “nothing is a priority if everything is a priority.” 

By pushing premium processing, Director Mayorkas, knowingly or otherwise, is offering a direct challenge to these years of accumulated dismissals of the idea that premium processing could work for EB-5. 

Therefore, my conspiracy theory is that this upsurge in EB-5 related RFEs and a slow down in processing times is part of a deliberate bureaucratic counterattack to delay and hopefully kill off Mr. Mayorkas' EB-5 premium processing idea once and for all.  How sad would that be?  While USCIS career bureaucrats protect their turf and reputations, job creation and investment in the U.S. remain stalled.  Yes, indeed.  The American people are being held hostage.  USCIS can hire as many “Entrepreneurs in Residence,” and bring in as many business process consultants as they want.  The underlying problem will not change. 

Don’t get me wrong.  Obtaining an exemplar approval is not entirely useless.  It continues to serve as a mechanism for new projects affiliating with existing Regional Centers to show that USCIS recognizes this affiliation.  With the Regional Center marketplace becoming more crowded and fake Regional Center projects popping up from time to time, an exemplar approval can be useful in marketing to show potential investors that the project is real.  However, providing Regional Center projects with marketing credibility was not, and should not be the intention of the exemplar process. 

While the theory behind the exemplar process is exemplary, the reality of the situation has become an absolute joke, a shameless money grab.  So the next time you feel like filing an exemplar and paying the $6,230 I-924 filing fee, do something more useful with that money.  Put the money pile in a fireplace and light it on fire. You’ll get more out of it, such as keeping warm on a cold winter’s night or possibly toasting some marshmallows if you're motivated. 

Brandon Meyer is Principal of Meyer Law Group, a full service immigration law firm with offices in Stamford, CT and Solana Beach, CA.  His e-mail address is Brandon@meyerlawgroup.us.

[1] “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38), December 11, 2009.

[2] I asked the question during the March 2010 stakeholders outreach session, “well, if you won’t issue an I-797, how do we know you have the filing and are working on it?”  The answer I received was something to the effect of “trust us.”

[3] See http://en.wikipedia.org/wiki/Edwin_Starr, last accessed December 21, 2011.

[4] 2009 Neufeld Memo, page 4.

[5] See the latest California Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37645, last accessed December 21, 2011.

[6] The principal blogger of www.nationofimmigrators.com, Angelo Paparelli, was also a panelist during Kimberly’s reminiscences.

[7] See the latest Vermont Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37649, last accessed December 21, 2011.

Although I've mentored dozens of able and bright immigration lawyers, some new, some not so, I continue to be amazed at how few appreciate the power of telling stories (double entendre intended).  Sadly, the unscrupulous -- the notarios, consultants and sleazebags with a law license -- know too well the power of storytelling -- but I'm talking about truthful, factual, accurate stories, not fabrications.

Some stories tell themselves, like the saga of my pro bono client, Shyima Hall.  Born in Alexandria, Egypt as Shyima Hassan, one of 11 children in a poor family, she is sold by her mother at age 9, and smuggled into America a year later to work for a wealthy Egyptian couple in my town, Irvine, California, a 'burb often rated, ironically, one of the most crime-free cities in America. After three years of captivity, working night and day for the couple and their five children, sleeping in their unheated, unlighted garage, washing her clothes in a bucket, she is spotted by a suspicious neighbor who tips off the police. The couple is convicted and Shyima is taken to Orangewood orphanage, then adopted by a foster couple, and along the way befriended by a compassionate agent of U.S. Immigration and Customs Enforcement (ICE).  

Shyima obtains a green card as a Special Immigrant Juvenile.  After high school, she travels around the country with ICE to speak about the dangers of human trafficking and urge trafficked victims to be brave and come forward. She volunteers with the Public Law Center, the Orange County Human Trafficking Task Force, and other anti-slavery groups such as the Coalition to Abolish Slavery and Trafficking. 

Years later, serendipity leads me to Shyima (who is now a young adult).  It prompted me on a whim to pop into the office of an ICE communications officer to say hello at the close of a USCIS California Service Center Stakeholders Meeting. The officer tells me about Shyima and her goal to become an ICE officer, but also of this amazing woman's preliminary need to find pro bono counsel who'll help her become a naturalized American. Asked to find Shyima pro bono counsel, I volunteer myself and my firm. The media have followed Shyima's story, since she was first released from captivity, and again just last week in this Los Angeles Times piece and this AP article as well as the following video, shot on the day of her oath-taking and embrace of American citizenship.

Not all immigration stories flow naturally with such a dramatic arc. Some are hidden and must be teased out and coaxed to appear. Immigration lawyers who can do this, in my view, "are worth their weight in gold," as another immigration-agency communications officer, Karen Kraushaar, once told the Washington Post (before she moved on to another federal job and later joined other women accusing Herman Cain of sexual misconduct  -- a totally different story in itself).

In truth, Ms. Kraushaar was referring to Immigration law's complexity ("[It's] a mystery and a mastery of obfuscation"). While surely the ability to traverse code sections, regulations, policy interpretations and institutional history matters (as the Supreme Court unanimously demonstrated this week in the Judulang case), that's not the whole story. 

Telling immigration stories matter(s) just as much, sometimes more. Good immigration stories entice.  Unlike the physical imprisonment of Shyima's Irvine garage, they create emotional captivity. They have the power, as in Shyima's case, to melt the (too-often) frozen heart of ICE. Take for instance the 50 real-life biographies depicted so well, with vivid photos and eloquent word pictures, in a new book, Green Card Stories. These stories, however, did not tell themselves.  They required worth-their-weight-in-gold immigration lawyers (mostly members of the Alliance of Business Immigration Lawyers) to bring them to life.

Immigration lawyers, paralegals, U.S. citizen spouses and families of the foreign born, employers of non-citizens, and would-be Green Card holders:  Read this book! It will inspire you to make your clients', families', employees' and your own Green Card stories a reality. These stories, like all well-told immigration biographies, humanize the demonized and prove that they are worthy of welcome. These dramatically revealed tales of truth and hardship, often extreme and exceptional, unmask the lies of the nativists and the naïve, who make or believe the make-believe memes about immigration, legal and illegal. They help us "Define American."