USCIS Knows What Its Problems Are. Will It Now Fix Them?

August 20th, 2010

Recently, the USCIS conducted a survey of more than 5,000 “stakeholders” (folks who care about and participate in the U.S. immigration system in some way).  These stakeholders were asked to identify the key areas of concern for them.  The USCIS has now released its initial report from this survey, identifying the areas of concern most frequently raised by stakeholders.  The report is enlightening.

This initial report lists the following areas of concern, in order, that USCIS will address:

  • National Customer Service Center
  • Nonimmigrant H-1B (specialty occupations)
  • Naturalization
  • Employment-Based Adjustment of Status
  • Family-Based Adjustment of Status
  • Employment-Based Immigrants Preference Categories 1, 2 (priority workers, professionals and holders of advanced degrees) and 3 (skilled workers and professionals)
  • Refugee and Asylum Adjustment of Status
  • Form I-601 (Application for Waiver of Ground of Inadmissibility)
  • General Humanitarian Programs
  • Employment Authorization and Travel Documents

The USCIS has committed to:

convene working groups to review each of the issue areas. Leaders from across USCIS will join analysts, adjudicators and customer service representatives in examining policy and instructional documents that guide our work. USCIS will follow the federal rulemaking process whenever appropriate, and once approved, new policies will be available electronically.

While it is all well and good to internally review and examine policies and procedures, isn’t that the source of the problems with these listed areas of concern?  After all the biggest problem identified by stakeholders is the Customer Service it offers!! I challenge the USCIS to involve stakeholders in these working groups so that not only are real concerns voiced, but solutions can be discussed in an open forum, generating more and better ideas than have been coming out of USCIS since its formation.  Making stakeholders and customers wait to comment on “”possible” internally generated changes until “potential” federal regulations are published (comments which are frequently ignored by USCIS in the rulemaking process) is more of the same old way of doing business.

Director Mayorkas should follow the promise President Obama made shortly after he entered office to make the internal decision making process more open and transparent.  Enough of internal working groups.  Let’s really fix these problems.  Together.

Senator Schumer, You are Wrong!

August 19th, 2010

Last Week Congress passed its first major piece of immigration legislation in several years.  The Border Security Emergency Supplemental Appropriations Act of 2010 (H.R. 5875)

Besides the fact that the bill itself is a joke–passed without debate, study or analysis as to its effectiveness, there are two major problems–Funding of the $600 Million Dollars Bill, and the “Real” purpose of the bill.

First the “real” purpose of the bill–Schumer and other Democrats have barked loudly that the bill is intended to shut the mouths of border crazies who refuse to discuss any change to our nightmarish national immigration policies until America is safely tucked inside a sealed bubble, invulnerable from entry by anyway but the purest foreign national.  Senator Sessions from the border state of Alabama, who can only be described as absolutely crazed on the issue of immigration, responded to this strategy:

Democratic Sen. Chuck Schumer of New York was hopeful that the bill would bring Republicans back to the bargaining table. But one key GOP Senator, Jeff Sessions of Alabama, threw cold water on those hopes, calling the bill “more like an effort to receive positive press” for Democrats rather than a genuine attempt to stop illegal immigration.

“Make no mistake: while this small measure can have some value, if it is not followed by strong, sustained action; it is yet another gesture without consequence,” Sessions, the ranking Republican on the Judiciary Committee, said in a statement issued Thursday.

“The ‘Masters of the Universe’ in Washington are always proposing new plans to deal with the massive illegality at the border,” said Sessions. Last week, Sessions and Arizona Sen. John McCain, another key Republican, said the $600 million bill was only the first step in toughening the border.

So much for Republicans now happily agreeing to Comprehensive Immigration Reform.  Just in case Senator Schumer (and President Obama) did not get the message from Senator Sessions, let me make it perfectly clear:  Republicans will NOT support any type of immigration reform that recognizes the reality we are currently in.  Period.  President Obama, Senator Schumer–If you cannot do it without Republicans, you are not going to do it.  My suggestion is that you get the Democrats to fulfill the campaign promise of immigration reform, or kiss the Latino vote goodbye.  Clearly, the Republicans do not care about their future as a party of inclusion, do the Democrats also not care?

Now, the Second BIG problem with this bill–It is NOT paid for!  Senator Schumer said that this bill would funded on the backs of employers of foreign national employees–specifically those who have more than 50 employees, and who’s workforce is more than 50% made up of H-1B and/or L-1 workers.  For those specific companies, the USCIS is now going to collect an ADDITIONAL $2,000 fee, over and above the  H-1B filing fee of $2,230 and the L-1 filing fee of $820 these companies already pay to USCIS to file (but not necessarily approve) the application.

This full funding of this bill is unclear (like most bills that come out of Congress), but the funding is summarized as follows:

Rescinds from unobligated balances certain funds for: (1) U.S. Customs and Border Protection, border security fencing, infrastructure, and technology; (2) Transportation Security Administration (TSA), aviation security; (3) FEMA, administrative and regional operations; and (4) Department of Commerce, Bureau of the Census, periodic censuses and programs. Directs the Department of Defense (DOD) to pay in FY2010-FY2011 the full costs associated with deployment of the National Guard along the Southwest border.

So, while it is unclear how much Senator Schumer hoped to raise from his H-1B and L-1 visa stunt, perhaps a little math is in order.  So far this fiscal year, the USCIS has received about 43,000 H-1B applications for new H-1B workers (of a total 85,000 that are available).  That leaves 42,000 potential H-1B applicants to pay the $2,000 Schumer Fee.   If every one of those cases paid the Schumer Fee, that would raise $80,000,000.  That leaves only about $520,000,000 to be funded by the L-1 visa program and the other cost shifting noted above.  There are not even 85,000 L-1 applications filed in an entire year by all applicants, let alone the specific applicants to which this law applies.  Couple the numbers problem with the USCIS attack on the specific type of employer that Senator Schumer is targeted, and the resulting sharp decrease in usage of the H-1B and L-1 visa by those employers, and what becomes clear is that the Schumer fee cannot possibly raise more than a few million dollars.  How pathetic.

So, once again, as citizens, we are left holding the debt for Congress’ effort to throw more money at the border, without a solution to our immigration crisis.  Senator Schumer, you are wrong.   This bill is not about border enforcement, nor is it about getting Republicans to play ball on immigration reform.  This bill is about money; money to special interests who will benefit from it’s spending. But this new law is not about fixing a broken immigration system.   You probably don’t want my advice, but here it is anyway.  The next time you move forward on immigration legislation Senator Schumer, I suggest aiming a little higher in your aspirations and fix the system, don’t just repair a broken pipe.

GOP candidate for Governor announces Arizona-style immigration bill for Florida

August 12th, 2010

According to an examiner.com report, Florida’s Attorney General Bill McCollum, and a GOP gubernatorial candidate, yesterday announced a bill to be introduced in the Florida Legislature that will rival Arizona’s embattled immigration law.

This requirement of “reasonable suspicion” – legal buzz words that mean something less than “probable cause”, sets this bill apart from the Arizona law, according to McCollum. The bill also allows judges to consider a defendant’s immigration status when setting bond amounts and in allowing prosecutors to bring higher-level charges against illegal immigrants and stiffer sentences at conviction.

Also different than the Arizona law, the AG’s bill would not allow citizens to sue police agencies for failing to enforce the law – this would instead be left to the Attorney General’s office. Employing illegal immigrants would also become a violation of state criminal law, and the bill would require businesses to use the federal E-Verify program before hiring anyone. The Florida bill specifically prohibits racial profiling.

A federal judge postponed the implementation of various portions of the Arizona law in July, including a section that required officers to check an individual’s immigration status while enforcing other laws. The Department of Justice brought suit challenging the law on supremacy grounds – that the federal government has the responsibility of creating and administering immigration laws, and that the states cannot implement such laws.

McCollum’s challenger, Rick Scott, accused the Attorney General of “flip-flopping,” according to Scott’s communications director. She attributed the proposal to McCollum’s sliding poll numbers.

Immigrant-advocacy groups denounced the bill immediately. Cheryl Little, the Executive Director of the Florida Immigrant Advocacy Center in Miami, released a statement criticizing the bill, saying that it would add chaos and confusion to an already broken system.

New Pro Se program coming to Charlotte Immigration Court

August 12th, 2010

The Charlotte immigration court plans to implement an orientation program, run by volunteer immigration attorneys, for everyone who is in immigration court for the first time and who does not already have an attorney. This program will mirror the volunteer attorney programs in the San Francisco and San Antonio immigration courts.

Each person will have an opportunity to speak with a volunteer immigration attorney for about ten minutes. The attorney will do a quick analysis of each case and provide each person with a list of documents to bring to an immigration attorney. They will also be provided with a list of immigration attorneys who have meet certain competency requirements. The program is scheduled to start sometime in October of 2010.

SB 1070 is Dead–Where to do we go from here?

July 28th, 2010

In her decision on the constitutionality of Arizona’s SB 1070, Judge Bolton was quite specific as to what provisions were unconstitutional:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 –A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070–A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070– A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work

Section 6 of S.B. 1070–A.R.S. § 13-3883(A)(5): authorizing the warrant-less arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

Her rationale was simple–These specific provisions unconstitutionally infringe on the Federal Governments authority in the area of Immigration.  She has a long line of authority supporting her reasoning, dating back to Supreme Court cases from 1941.   There is not going to be a successful appeal.  Period.  From a rational point of view, we do not want or need, as a country, 50 different states passing 50 different versions of immigration law.  It is not good for commerce, it is not good for the country, and it certainly is not good for immigrants.

Rather than wasting time (and we are wasting time) fighting a law that the writers KNEW would be declared unconstitutional (don’t doubt that Kris Kobach knew he would lose this fight), why don’t opponents of “illegal immigration” spend time working with members of Congress to pass legislation that changes our immigration laws to reflect the economics of the 21st Century, the goals we have as a country for new immigrants, the demands employers have for skilled and unskilled labor, due process guarantees, and the reunification of families?  Why, because the folks who virulently oppose “illegal immigration” are not interested in fixing the system to decrease illegal immigration. They are only interested in eliminating immigrants.

Twenty years of fighting illegal immigration by ever tougher enforcement and attrition simply has not worked.  Billions of dollars have been spent, and yet folks still cross the border illegally and overstay their visas.  The size of the border patrol has quintupled and we have deported record numbers of immigrants, and yet there is no significant decrease in the overall numbers of undocumented immigrants (absent economic reasons).  As Einstein said:  Doing the same thing over and over again and expecting a different result is the very definition of Insanity.  Do we really want an insane immigration policy?  I hope so, because that is exactly what we have right now, and we desperately need to fix it.

How about instead of appealing a well reasoned and strongly supported decision, Governor Brewer (and her fellow Governors)  sits down with her members of Congress and encourages them to pass a Comprehensive Immigration Reform package that discourages future illegal immigration by making available avenues for legal immigration that meet the economic and societal needs of a modern America?  This same legislation can shrink the size of the current undocumented population by providing incentives to obtain legal status.  Magically, her concerns are addressed, AND the folks at DHS can focus on those folks who mean to do us harm, rather stopping dishwashers  and landscapers.

The LDS Church, Russell Pearce, and Compassion

July 28th, 2010

How did Russell Pearce become the face of the LDS Church to Hispanics? For those of you who do not know him, Russell Pearce is a member of the Church of Jesus Christ of Latter Day Saints (the Mormons) and the State Legislator in Arizona (formerly regarded as a extreme but who now has become “mainstream” in Arizona politics), who is responsible for working with Kris Kobach and the folks at FAIR to develop extreme forms of anti-immigrant legislation, including SB 1070.  How did a man who is intolerant toward immigrants become the face of the LDS Church in Arizona?

To preface that answer, you have to understand how contrary his stand is to the work the Church is doing with Hispanic.  The LDS Church actively engages Hispanic communities in Arizona and throughout the United States through its Spanish speaking congregations and its missionaries.  Many Church member give hundreds of thousands of hours of volunteer service to help these congregations.  The Church’s mission and vision is one of bringing the Gospel of Jesus Christ to everyone, regardless of their immigration status.

Now, Russell Pearce wants the Church the change its “policy” and to now ask all Hispanics their immigration status BEFORE they attend Church or listen to the missionaries.  Basically, he is telling the Church not carry out what the Church considers its core mission.  Let’s all agree that Russell Pearce’s vision of the Church’s outreach will simply not happen.

The tragic part of Russell Pearce becoming the public face of the Mormon Church to Hispanics is that it is so contrary to what the Church teaches about forgiveness, compassion, and faith.  The LDS Church spent the better part of 30 years fighting the Federal government on a law the Church considered not only unconstitutional, but unjust.  Yet, Russell Pearce apparently believes that ALL laws, regardless of their original purpose, their relevancy today, or their effectiveness must be enforced to their fullest extent.  He sounds so much like Javert from Les Miserables, that it is scary.

In an interview with Univision this week, Russell Pearce expressed his inner soul:

PEARCE: We [Mormons] believe in the rule of law, All I’m gonna say our church teaches the rule of law, absolutely.

SALINAS: It also teaches compassion, no?

PEARCE: Which compassion, what about the child molesters, should we have compassion for them too?

SALINAS: That’s what the church says, that we should not turn…

PEARCE: Hang on, hang on. We should have compassion with child molesters, burglars, rapists, right? They still go to jail. The laws are going to be enforced. You break the law, there are consequences. Don’t have compassion for people who break the law. There are consequences. We are a nation of laws.[...]

SALINAS: Should the Mormon church be criminalized or sanctioned for helping undocumented immigrants?

PEARCE: If they do it deliberately, treat them as you would treat any other person. I do not support law breakers.

SALINAS: Even if they are Mormons?

PEARCE: I don’t care what church they’re part of. Illegal is illegal. The law is the law.

So, you members of the LDS Church who serve in Hispanics congregations where someone might be undocumented, Russell Pearce wants you arrested. He wants you punished for not obeying every law on the books.  Does this also sound familiar to you?  As Inspector Javert said:

“Right or wrong, the law is the law and it must be obeyed to the letter.”

In many ways I pity Russell Pearce. His demand for justice without mercy speaks volumes about where he is coming from.  I don’t know Russell Pearce or what demons drive him to this position, but I do know this, Russell Pearce does NOT speak for the LDS Church.  He does not speak for the hundreds of thousands of Mormons who regularly give compassionate and caring service to Hispanics both within and outside our congregations, regardless of their immigration status. And, he does not speak for me.

In a footnote to this blog, I also note that the most stridently anti-immigrant parts of the law drafted and passed through the efforts of Mr. Pearce were struck down today by Federal District Court Judge Bolton.  I had to say I told you so, but, I told you so.  Chalk this one up as a victory for the Constitution.

An Amnesty–Is That Legal?

July 20th, 2010

I was driving to court recently down a highway in Atlanta when I drove past a toll booth with a HUGE sign on it.  The sign read “AMNESTY.”  I thought:   “wait a second!  Amnesty” is a dirty word, literally unmentionable in polite company.  How could there be an “Amnesty?”

On my way back to the office, I passed the toll booth again.  Again, the sign was there. This time I slowed down (a little), and noticed it was a “Toll Amnesty.”  This toll “Amnesty” is apparently a regular event in Georgia.  I explored a little more about this “Amnesty,” trying to understand how a toll “Amnesty,” turning illegal drivers into legal ones is permitted, but an “Amnesty” that would turn “illegal” people into legal people is not.   I dug around a little on the Internet and found some information about the reason for and the goal of this toll “Amnesty:”

What is the toll violation amnesty program?

Normally, the State Road and Tollway Authority (SRTA) charges a $25 administrative fee, as provided by Georgia law, each time someone fails to pay the toll to travel on the tolled section of Georgia 400. During the limited time of this amnesty program, SRTA is willing to reduce a portion of the $25 administrative fee to $15 per violation. During amnesty, the Customer will be responsible for the $15 administrative fee plus the toll per violation.

Why is SRTA offering its customers an opportunity to compromise their violations?

SRTA’s primary goal is to collect all tolls due. We believe one way we can accelerate the collection of unpaid tolls is to offer a temporary financial incentive to our customers – namely, a partial waiver of the normal $25 per violation administrative fee-if the tolls are voluntarily paid now.

So, the toll “Amnesty” is designed to FORGIVE people for breaking a law (a misdemeanor in Georgia),  bring people out of the shadows of toll illegality, and, as an incentive to do so, have people pay LESS of a fine than if the agents of the state went out and rounded up everyone who is a toll violator.  Does the State of Georgia know who these “illegals” are?  Sure they do! If you  fail to pay a toll, a photo of your car and license plate is taken, so the State of Georgia knows exactly who broke the law and where they live!   (If only those Utah state employees lived here, they could have put their “hit” list out for the Georgia State Patrol to go out and arrest these illegal drivers.)

Let’s compare a proposed national “Amnesty” (or for those of you with sensitive ears–legalization) with this Georgia “Amnesty.”   An immigration “Amnesty” would FORGIVE people for breaking the law (a misdemeanor if they came in illegally and a civil violation if they overstayed their visas), bring people out of the shadows and into our mainstream economy, and lessen the penalties currently in place (a 10 year bar in the home country) to encourage people to come forward right away and become “legal.”

Wow, that is the same rationale for both programs.  One run effectively by the State of Georgia and one denied a chance at being effective by national politicians.  Why can we do one and not the other?  Why can we give “amnesty” to illegal drivers but not to “illegal” people?  Simple–A lack of leadership and a lack of political courage.

Once we can convince our national political leadership that immigration reform is GOOD for America (and it would be very good for America) and that the example set by the Georgia State Road and Tollway Authority is a good one to follow,  we can end this divisive debate over immigration, calm racial tensions in America and get back to work fixing our economy.  My only question is — which national politician has the courage to stand up and lead on this key issue?

The Immigration Debate Continues–This Time in Utah

July 14th, 2010

In state associated with people who know and understand persecution, the release by an “anonymous” group of a list of people it claims are illegally in the United States was distrubing. The list is intended to cause panic and concern.  The Governor of Utah has correctly already started an investigation into how such a list was compiled and who published this list, given the sensitive and apparently incorrect information it contained, and the damage such information can do to person and their children.  But, there is a larger issue here just privacy and security concerns.

It is good that the list was published.  Don’t get me wrong.  It is not good for the people and their families on the list.  It is not good for image of the state of Utah. But, rather, it is good that this list is out there, because it shows the inflammatory nature of the debate on immigration enforcement and reform.  Sometimes the truth is sacrificed when points are made about immigration, and that is certainly the case here.  It is also good in that is shows the politicians who support anti-immigration legislation the societal consequences of their speeches.  Surely they must have realized that this and much worse things were coming?  Next time, it might not be just a list. What if someone uses that list to “get” a person on it?  We know some of the people are the list are permanent residents and citizens.  Will anyone speak for them when harm is done to them?

How could it come to this, in Utah of all places?  Let me will tell you how– The mistaken perception that there is no immigration enforcement today, and the public’s desire that the issue of immigration be addressed by a reluctant Congress.  It is not an issue of Americans not embracing immigrants.  We frequently hear the mantra that we love “legal” immigrants.  The bigger problem is that “legal” immigration has become a bureaucratic nightmare bogged down in 20th century laws and not reflective of either our society or an economy of 2010.  Yet Congress continues to drag its feet in reforming immigration system.  President Obama has broken his promise to Hispanics to push immigration reform.  Congress is scared to death to vote on immigration on this mistaken belief that they will lose elections if they support a workable immigration system.  Bill O’Rielly understands that the need to reform our system and move forward with workable solution.  But vilifying helpless children is not a solution.  It is an attack. Unjustified, and unnecessary.

A bigger concern for Utah has to be the fallout and consequences of “The List” and prospective state legislation on immigration.  If Utah politicians ignore not only the political consequences, but their own heritage in moving forward toward passing an Arizona style “show me your papers” type of law, Utah will become, like Arizona, an economic pariah.  Utah will be faced with declining foreign and domestic investment as the result of efforts to isolate those states that pursue legislation that serves no legitimate law enforcement, drives immigrants further into the shadows and away from the police, and deepens the divide in the United States over what is good for the future of America.  Fifty different state laws on immigration policy is not a way to effectively run a country.

If only Utah would lead out on positive immigration reform, the story would be dramatically different and systemically better.   I pray that will happen. I fear it will not, because as the founding fathers of Utah learned as the victims of such laws, it is easier to vilify, and spurn, rather than to understand and move forward together toward a postive solution.

Suing Arizona—What Choice is There?

July 7th, 2010

From my Op-Ed today in the Atlanta Journal Constitution:

There is no surprise in the Obama Administration’s lawsuit to stop enforcement of Arizona’s immigration law–SB 1070.  President Obama must defend federal authority to act exclusively on immigration law.  The Supreme Court has long held that states cannot impinge on federal authority, unless those state laws are “consistent” with Federal law.  Arizona’s SB 1070 is not consistent with federal law, despite protestations to the contrary.  SB 1070 goes far beyond that 1940 law on which it claims to be based and which was designed to round up Japanese, German and other “enemies“ in a time of war.

Everyone understands the frustrations associated with undocumented immigration.  But the Obama Administration (nor any Administration) cannot tolerate 50 different states passing 50 different state laws on a federal issue like immigration.  It is already a nightmare in the context of E-Verify.   If President Obama does not act, he gives tacit approval to the notion that states can pass conflicting and impossible to fairly enforce immigration related laws.  By going to Federal court he signals that SB 1070 encroaches on federal immigration law.  Faced with this choice, there is no choice at all.

Don’t Get So Uptight. It’s Only a Guideline.

July 6th, 2010
Many people in the immigration field are familiar with the “policy” memorandum issued in January 2010,  known as the “Neufeld Memo” on H-1Bs. The  law firm of Greenburg Traurig  recently sued USCIS over this outrageously inappropriate and legally irresponsible change in policy.  In response, the USCIS has just filed a response arguing that a Preliminary Injunction against the Neufeld Memo should not be granted. You are going to love the reason why:
Moreover, the guidance memorandum at issue in this case is not subject to the notice and comment rulemaking requirements of the APA. USCIS’s memorandum merely sets forth a general and flexible framework to guide agency adjudicators in the exercise of their discretion. The memorandum simply refines the contours of an already existing legal norm set forth in the agency’s regulation. Under these circumstances, the memorandum falls well within the contours of a policy statement or interpretive guidance, as defined by the D.C. Circuit, and is accordingly exempt from the notice and comment rulemaking.

Wait!  Does that say what I think it says?  The Neufeld Memo is NOT policy?  Rather, it is “contour refining” guidance to adjudicators?  Can you see the milk shooting out my nose?   Hopefully, the Federal Court Judge will see through this charade.  The USCIS is using the oldest legal argument in the books–claiming something is not what it plainly appears to be.  Are they really saying that Service Center Adjudicators are free to ignore this “contour refining guidance”?  Really?

The real problems remain while USCIS plays word games with the federal court. Poor training by USCIS of its adjudicators, rogue adjudicators doing what they think the big boss in D.C. wants them to do (restrict legal immigration), and failure of oversight by USCIS HQ types over their Service Center operations.  Now they want more money to continue to give this poor level of service.  Will we ever see Congress step in here and get to the bottom of this government agency?