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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In a little-known practice that has been in place for a number of years, if an application is sent to any of the addresses for the Vermont Service Center by U.S. Postal Service, the postal service does not deliver it to the VSC, but rather, holds the application at a postal facility for the VSC to pick up.  And the VSC only picks up the mail once a day.  What’s more, the VSC tells us that they only treat the application as “received” when they get it, not when it is delivered to the address designated by USCIS on its website and forms instructions, even if there is a delivery acknowledgment and a Postal Service delivery confirmation.  On the other hand, if you submit your application using FedEx, UPS, or one of the other services, it gets delivered to the VSC directly, the VSC opens the package, and “receives” it into the system.

Who gets hurt by this practice?  Imagine a U.S. employer who has just entered into a contract for a project and needs the special skills of a particular foreign national. The employer has sent an H-1B petition via USPS to the VSC.  It arrived at the VSC mailing address on November 22, but it was rejected because it was not picked up by VSC until November 23, after the H-1B cap had been hit. Notwithstanding that fact that most of us would consider that a timely filing, the employer is simply out of luck.

The struggling U.S. Postal Service is out of luck too, because USCIS and the VSC are essentially telling their customers: “Don’t use the post office if you want to be sure we get the application on time.”

Where USCIS designates a street address or a post office box address as the place to which to send an application, a petition, or any other document, customers should be able to rely on timely delivery to that address as sufficient.  An arbitrary decision about when to pick up the mail should not have a “make or break” impact on a U.S. employer’s filing. This doesn’t make sense, it isn’t fair, it isn’t right, and it needs to be fixed.

Last night, President Obama laid out a plan to create desperately needed jobs in the United States, and made an urgent plea to Congress to pass that plan immediately.  As an attorney who works every day with small and emerging businesses that seek to grow and expand opportunities in the U.S., I was captivated by the President’s words about what we can do as a country to increase employment and improve the economy. I hope that USCIS was listening too.

Within the first few minutes of his speech, the President stated, “Everyone knows that small businesses are where most new jobs begin. And you know that while corporate profits have come roaring back, smaller companies haven’t. So for everyone who speaks so passionately about making life easier for “job creators,” this plan is for you.”  After laying out the elements of his jobs bill, the President discussed needed changes to the corporate tax code, which, he said, should “give an advantage to companies that invest and create jobs here in America.”  He said that, in a world “where technology has made it possible for companies to take their business anywhere,” in order to preserve jobs here, we must “out-build, out-educate, and out-innovate every other country on Earth.”  In introducing his Jobs Council, President Obama said, “[O]n all our efforts to strengthen competitiveness, we need to look for ways to work side-by-side with American’s businesses.” And he urged Congress to “keep trying every new idea that works, and listen to every good proposal, no matter which party comes up with it.”

While the President didn’t mention business immigration specifically in his speech, it was absolutely clear that his vision for creating American jobs embraces using every single tool at our disposal to assist, support and nurture businesses with the potential to expand employment here. While we must wait for Congressional action to achieve some solutions, like new green card categories for treaty traders and investors and other small entrepreneurs, there are crucial steps that may be taken immediately, and without Congressional action, to reduce or eliminate the immigration-related challenges faced by small businesses.

USCIS has started the ball rolling with its recent announcements on its entrepreneurship initiatives. But much more needs to be done. USCIS can and should provide additional training and guidance to those adjudicating petitions for key employees of new companies, to improve their understanding of business fundamentals and 21st century corporate models.  A new company seeking to establish itself in the U.S. typically finds itself faced with a request for an avalanche of documents –some irrelevant, some repetitive of what has already been submitted.  Adjudications can be streamlined and improved if adjudicators have a better understanding of what specific corporate documents they should request to confirm the existence and viability of a petitioner.  The corporate world has gone far beyond the “brick and mortar” days, and many businesses can succeed and thrive with less physical space and fewer physical assets. Regulations and adjudicators’ guidance manuals should be reviewed and updated to encompass these new and exciting business concepts, and to recognize that the creation of jobs–even a modest number–is in the national interest.  More encouraging consideration should be given to petitions involving new businesses with the potential for creating American jobs.  Simply put, in the current economy, we cannot afford to lose even one job due to a lack of understanding of a petitioner’s business model. There are myriad other innovative ways in which USCIS can support and help U.S. businesses thrive, and, as the President said, the agency should “keep trying every new idea that works.”

I am energized by the Administration’s focus on job creation and I am proud of the work that I do for my clients who want to help the U.S. “out-build, out-educate, and out-innovate” our global competitors. I hope that USCIS is willing to “work side-by-side with America’s businesses” too.

A visitor walking through the United States Holocaust Memorial Museum starts at the top floor of the museum, viewing film clips, photos and other documentation of the ominous and jarring beginnings of the Nazi regime in Europe – a regime that succeeded in great part because of a vast propaganda machine that constantly spewed a rhetoric of hate against Jews. In posters, films, textbooks, comic books, radio and through other media, Jews were consistently portrayed as a subhuman group who posed a threat to the ability of Germany to succeed as a nation. The dissemination of these ideas constituted a carefully laid foundation for the Nuremburg laws, which stripped away the basic civil rights of the Jewish population of Germany. When a country demonizes and de-humanizes a particular group, it is much easier to rationalize the elimination of that groups’ human rights.

The tour of the museum becomes progressively more harrowing, as the story of the persecution and mass killing of millions of Jews, and other “outsiders,” unfolds before you. Almost at the end of the visit, on the bottom floor of the museum, is an exhibit that lifts the heavy heart, almost like a small light at the end of a dark tunnel. It begins with a glimpse of a small red fishing boat—one of the boats used by Danish fisherman to ferry almost the entire Jewish population of Denmark to safety in secret. This is the museum’s section on “The Righteous Among Nations,” selfless people from all walks of life, all creeds and nationalities, who –individually or in groups—risked their lives and those of their loved ones to save Jews. Here you can find the story of Miep Gies, the Dutch woman who helped to hide Anne Frank and her family in the now-famous attic in Amsterdam, as well as the story of the Village of Le Chambon in France, where the entire population worked under the leadership of the local minister to save between 3,000 and 5,000 Jews. You can also read the stories of the lesser-known rescuers, such as Aristides Sousa Mendes, a Portuguese diplomat who signed 30,000 visas to assist Jews and other persecuted groups trying to escape from the Nazis, as well as the Bulgarian Orthodox church and Dimitar Peshev, a Bulgarian parliamentarian who led an effort that resulted in the preservation of the Jewish population of Bulgaria, in spite of the fact that the Bulgarian government was sympathetic to Hitler at the time. As you walk along the wall of rescuers, you realize that most of them were individuals—teachers, diplomats, clergy, police officers, soldiers, nannies, grandmothers—who made a personal decision to take responsibility for another human life in spite of the potentially dangerous consequences of doing so.

“The Righteous Among Nations” was brought to mind in recent weeks by the various news stories on the immigration debate here in the U.S.  Jose Antonio Vargas, the Pulitzer Prize-winning journalist who revealed several weeks ago that he is undocumented, spoke poignantly of his “underground railroad,” his network of teachers, friends and work colleagues who kept his secret and in many cases assisted him in overcoming the challenges presented by his undocumented status, to succeed at school and professionally. Some simply wanted Jose to be able to participate in life’s experiences as fully as any other teenager, like the choir teacher who decided to take the choir singers to Hawaii instead of Japan, so that Jose would not be left behind.

Paul Bridges, the Republican mayor of tiny Uvalda, Georgia, decided to sue to stop implementation of Georgia’s poisonous immigration law, not only because of the detrimental economic impact the law would have on the farms in his town, but also because the law threatens to tear apart a tightly-knit community where people open their homes to others during harvest season, and he himself drives parishioners to church on Sunday without asking whether they have papers. These acts would become illegal under the Georgia law. Alabama’s recent addition to the state immigration initiatives would similarly prevent neighbors from helping neighbors by criminalizing the provision of assistance to anyone who might be undocumented. No doubt, the hate-filled Alabama law will induce many citizens—public officials, teachers, neighbors—to risk prosecution in order to assist others in the community.

Just as the Holocaust Museum’s exhibit on rescuers serves as a light in a dark tunnel, the stories of those who would assist a young boy to reach adulthood and achieve success, and those who might assume the responsibility of housing or driving an undocumented worker even when that act has been criminalized, are inspiring and encouraging signs that many Americans can be relied upon to stand up and be part of the “Righteous Among Nations” when necessary. But we should not lose sight of the bigger picture. Those who rescued Jews and other oppressed people during World War II did so against the backdrop of a murderous regime that had singled out these groups for persecution and elimination. That is certainly not where we are as a country.  But when statutes such as the state initiatives in Alabama and Georgia are passed, and people begin to discuss choices between being law-abiding citizens and assisting another human being in need, or preserving the welfare of an entire community, we must seriously question the direction in which our nation is heading with respect to the rights and human dignity of our most vulnerable residents.

They had old-world names like Gussie, Rose, Max, Albina, Morris and Sarafina, and came from the “old countries” like Romania, Russia, Austria and Italy, but they had the same dreams that immigrants have always brought to this country, and continue to bring today: dreams of security far away from violence and persecution, dreams of escape from crippling poverty, dreams of starting businesses, like the immigrant owners of the factory where they worked, dreams of reinventing themselves in countless ways that would have been impossible in the old country.

They were the machine operators, cutters, sleeve setters, tuckers, blouse operators, foremen and foreladies of the Triangle Waist Company, working at a factory off Washington Square in New York.  As they prepared to go to work that early spring day–Saturday, March 25, 1911 — they could not know that their impact on their adopted country –indeed their legacy–would be born out of the tragic way in which they died.

The fire at the Triangle shirtwaist factory started in a wastebasket under a table in the cutters’ area on the eighth floor of the building, becoming rapidly uncontrollable, quickly spreading to other wastebaskets as well as to the paper patterns hanging overhead in the factory. Within 30 minutes, the conflagration had decimated the eighth, ninth and tenth floors of the building.  Most of the workers on the eighth floor were able to escape by stairs, and those on the 10th floor went up to the roof of the building where many were assisted by a law professor and his students from the neighboring NYU law school building. But the workers on the ninth floor, who had received no warning of the fire, fared the worst of all.  Their desperate attempts to exit the burning building were met with locked exit doors, a fire escape that ultimately collapsed from the weight of the collective bodies pushing to leave, and a freight elevator which–after its operators had made several  trips back and forth from the burning floors, saving 150 lives–broke down after people jumped into the shaft.  Desperate to be rescued by the approaching fire trucks, many workers waited by the windows.  But the Fire Department ladders only stretched to the sixth floor, and rather than facing death by fire, dozens of workers leapt to their deaths from the ninth floor of the building. In all, 146 workers died in the Triangle shirtwaist fire, all but 23 of them women, most of them immigrants. The next day, Abraham Cahan, the editor of the Yiddish newspaper The Forward, described the scene in heartbreaking terms:

“Like birds, so many of these young children took off skyward, in twosomes and threesomes they held each other, and leaped away from the flame-filled hell. And that’s how we perceive them yet. In flight they were still alive but one second later and their young bodies smash on the street’s concrete surface and they are no longer! Their young lives are extinguished!”

Today the Triangle fire is remembered by many because it accelerated the rise of the U.S. labor movement and led to the first widespread workplace safety reforms.  The tragedy also galvanized the entire community of Manhattan in grief, horror and activism—from the “uptown” Anne Morgan, daughter of J.P. Morgan, who organized other socialites to help the cause of working women, to the Russian immigrant Rose Schneiderman, a cap-maker and union organizer who delivered a riveting and influential speech at the memorial service for the Triangle victims, held a week after the fire.  Present at that speech was one Frances Perkins, then a 30 year-old social worker, who happened to be in New York on the day of the fire visiting friends. She later worked on factory safety commissions and ultimately became the first woman to hold a cabinet post–FDR’s Secretary of Labor (and, incidentally, immigration, which was resident in the Labor Department at the time.)  Frances Perkins later described the Triangle Fire as “the day the New Deal began.”

That the Triangle fire impacted an immigrant community in particular is, of course, no accident of history. As the immigration law community is well aware, even today as in 1911, so many immigrants work in substandard conditions, willing to take grueling and miserable jobs, in order to pursue their dreams of a successful life on our shores. And as Frances Perkins and others whose life work was inspired by the Triangle Fire realized, our society is really only as good as the way we treat our most vulnerable populations.

Today, on the one hundredth anniversary of the Triangle Fire, take a moment to remember its victims. Think about their vanished aspirations as we work to make the hopes of a newer generation of  immigrants a reality, thereby enriching our nation. You can find excellent articles about the history of the fire, as well as information on memorial activities planned, on the New York Times website, as well as the website of The Forward (www.forward.com), which has published both current articles as well as archival material including its own coverage of the tragedy.

USCIS has taken an important step in the right direction with its recent announcement that it is reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education, and that until further notice, the agency will give deference to its prior determinations that a non-profit entity is related to or affiliated with an institution of higher education, absent any significant changes in circumstance or prior clear error. http://www.aila.org/content/fileviewer.aspx?docid=34880&linkid=231066

This announcement allows numerous organizations affiliated with colleges and universities–such as teaching hospitals and research institutions–to breathe a sigh of relief as they gain some assurance that they can continue to employ doctors, researchers and other highly-skilled specialists in H-1B status.

Although we do not have the final answer from USCIS yet with respect to this issue, the announcement that the agency would not make a sudden reversal in policy was an important sign that the agency takes seriously its pledge to engage the public in dialogue about its policies and that it gives substantial consideration to stakeholder feedback. Moreover, it shows that USCIS understands the importance to U.S. employers of predictability and consistency in the immigration process.

The announcement by USCIS is also a fine example of the agency’s adherence to President Obama’s recent Executive Order on Improving Regulation and Regulatory Review, issued on January 18, 2011. The Executive Order stressed the importance of a regulatory system that maximizes net benefits in terms of various national interests including our public health and welfare, and underlined the importance of public participation in the regulatory process. USCIS is listening. Isn’t this the way government is supposed to work?

I have been pondering the issue of birthright citizenship now that it’s (unbelievably) under fire, and there is one thing I just can’t figure out. Why are those who are staunchly opposed to illegal immigration not defending the 14th Amendment just as staunchly?

After all, the 14th Amendment sets up a very clear structure that helps us define who has a right to citizenship and who does not: those born here have the right to full citizenship (unless, as in the case of certain children of diplomats, one is born here but not subject to U.S. jurisdiction—an exception.) What is the alternative? A very messy system under which those who are born here would have to show additional forms of proof as to the status of their parents in order to claim a right to U.S. citizenship. If it is difficult now to determine who has a legal right to be in the U.S., it’s certainly not going to get any easier if we start making fine distinctions among those people actually born here. If –as many allege—our current immigration system is prone to fraud, consider the potential expansion in the market for counterfeit documents if proof of the status of parents is required of those born in our country.

Certainly those who seek to reduce –indeed, eliminate– illegal immigration to the United States could not possibly be in favor of creating an entirely new class of U.S. inhabitants whose right to remain here legally is amorphous and uncertain. And those who point to the dollars we have to spend to deal with illegal immigration could certainly not support the creation of the bureaucratic apparatus that we will surely need to wade through the paperwork morass in order to figure out who is and is not a citizen by birth in the U.S.? Or could they?

One of the original reasons for passage of the 14th Amendment was to avoid the creation of two groups of U.S.-born residents—those with access to all rights and privileges offered by this country and those cut off from those rights and privileges. That made sense 150 years ago, and it still makes sense today.

A client of mine is in a real quandary.  The client has a major project with an urgent deliverable that requires a key employee to travel to the U.S. urgently.  Because the company has a crack operations staff, they were on this issue early on, and we filed an L-1B petition months before the travel was necessary.  However, current processing times being what they are, we had to upgrade the case to Premium Processing recently in order to have any chance of obtaining an approval before the start date. Notwithstanding our extensive documentation,  we recently received a massive Request for Evidence and I must confess, our office has been struggling with a response. In the interest of getting something in on a timely basis, the client has authorized me to share details about the petition with the AILA membership for the purpose of tapping into the collective brilliance of the immigration bar to put together a winning response. Here are select portions of the RFE. Any comments or suggestions are most welcome.

Petitioner: Clausiseverywhere.com

Beneficiary: Nicholas LNU

“It has not been demonstrated that the beneficiary has knowledge of your company or the industry as a whole which can be considered “specialized.”  Most individuals working in the marketplace are specialists and have been administered a certain amount of training from which they have gleaned special knowledge. It cannot be concluded, however, that all workers who hold specialized knowledge or perform highly technical duties qualify as “specialized knowledge” nonimmigrants.

The petitioner states that the beneficiary will enter the U.S. on an intermittent basis to perform similar duties in the U.S. as those performed abroad and describes them as follows:

• Continuously maintain and update “Naughtynice.net,” a proprietary system to manage database containing behavioral information for the world’s population, with an integrated input process for storing personal interests, hobbies, sleep/awake patterns and other information and inputs received, as well as a sophisticated order fulfillment program.
• Business analysis and operational planning for wide-scale international yearly order-fulfillment and distribution project
• Manage sophisticated geographical information program using satellite images of earth to determine locations where orders must be distributed. The petitioner claims that this program is akin to Google Earth, with certain added proprietary features, such as the ability to locate homes with extra-wide chimneys, homes with very small chimneys, homes with no chimney, and even homes where cookies and milk are regularly left on the fireplace mantle
• Ensure that business requirements are translated into accurate orders that can be  produced and fulfilled by staff at company’s factories
• Utilize highly specialized tools to drive and care for a fleet of unique delivery vehicles with obsolete technology.

It appears that the use of the company’s proprietary tools may be incidental to the duties of the U.S. position, as it appears that the beneficiary may be coming to the United States merely to provide support for the company’s services. Moreover, there is no indication of how much time is spent performing the duties that require processes specific to benefiting your company, besides its economic viability. Please provide detailed list of each specific duty requiring specialized knowledge and a breakdown of time spent on each duty.

Specialized knowledge generally comes as a by-product of the projects and activities employees are assigned, not commonly held by significant portions of employees of a company. Identify the percentage of others within the company who hold the level of knowledge you claim that the beneficiary possesses.  Identify how long it takes to train an employee to use the specific tools, procedures and/or methods utilized. Explain exactly how the beneficiary’s training differs from the core training provided to your other employees.  Submit a record from your human resources department detailing the manner in which the beneficiary has gained his/her specialized knowledge.

The petitioner claims that without the services of the beneficiary, the petitioner’s business would suffer economic decline. Moreover, the petitioner claims that thousands of its customers internationally may suffer grave disappointment and even loss of faith. The value of the beneficiary’s skills to the petitioner is not in question. The petition must be examined to determine if the beneficiary’s duties involve knowledge that is significantly beyond the average in a given field or occupation. Merely limiting an employee’s knowledge to specific tools, procedures, methodologies, and or programs, proprietary or otherwise, does not necessarily create specialized knowledge.

It appears from other information provided in the petition that the beneficiary has some management duties. Specifically, the petitioner claims that the beneficiary manages all factory staff engaged in the manufacture of products for order fulfillment, mainly playthings.  In addition, the petitioner states that the beneficiary oversees the care and feeding of flock of roughly 8 rare miniature “Rangifer Tarandus,” plus one with a unique nasal condition.  However, without more information this would not in and of itself establish eligibility for the L-1A category as an alternative. From the promotional material submitted, it would appear that the factory staff are individuals of extremely small stature who wear uniforms including pointy hats and colorful leggings. They appear to be lesser skilled workers. Thus the duties with respect to these workers would be those of a first-line supervisor. Moreover, management of livestock does not create eligibility for L-1A purposes. 

Your response must be received in this office by December 24, 2010.”

P.S. The writer does not opine on whether or not Santa is make-believe. The excerpts above showing the evolving, and ever-narrowing definition of specialized knowledge, alas, are not.

Yesterday, the Senate approved a multi-billion dollar package of tax breaks and government-backed loans to aid small businesses. It was a victory for the Obama Administration. As Senator Barbara Boxer stated, “Small businesses are the major job creators in our economy, and this legislation will ensure that our small businesses have the tax incentives and credit they need to expand and hire.”

It is abundantly clear that the success of small businesses is key to the overall success of the U.S. economy. A recent study by the Ewing Marion Kauffman Foundation looked at U.S. Census data which showed that, on average, new firms add 3 million jobs in their first year, and that during a recession, job creation at start-ups remains stable, while net job losses at existing firms are highly sensitive to the economy. In addition, start-ups tend to retain on average, 80% of their total employment in their first five years of business, unless exposed to a prolonged recession. A survey by the Gallup Poll on confidence in American institutions shows that 66% of Americans have confidence in small businesses, as opposed to 19% confidence in big business.

Why should immigration agencies care about the Administration’s interest in supporting small business and the overwhelming statistics about their importance to the economy? That’s an easy one. Because foreign nationals start a large percentage of new businesses in the U.S. Consider these numbers from a 2008 report from the Small Business Administration Office of Advocacy:

Immigrants represent 12.5% of all business owners

Immigrants are 30% more likely to start a business

16.7% of all new business owners are immigrants, and in some states more than 30% of all start-ups are founded by immigrants

And, according to a March, 2009 Wall Street Journal blog article (quoting an article in the Richmond-Times Dispatch), the values that immigrants bring with them to the U.S. about thrift, avoiding excess debt and relying on family support are helping many immigrant-owned businesses ride out the recession better than other businesses.

There is no doubt that Congress should be paying attention to these reports and formulating solutions–other than the EB-5 category– that make it easier for immigrant entrepreneurs to come to the United States. But USCIS needs to pay close attention too.

We know that USCIS’s primary mission is to implement and enforce the nation’s immigration laws as they relate to the granting of immigration benefits. And USCIS is to be lauded for its hard work–recently begun under USCIS Director Alejandro Mayorkas–in reviewing the quality and timeliness of its adjudications.

But USCIS has an opportunity to support the ailing U.S. economy as well. Currently adjudicators are applying unnecessarily narrow interpretations of laws and regulations that are casting a chill over the efforts of small entrepreneurs to be successful in the U.S. with their new and emerging businesses. From a policy perspective, this is evident in the Neufeld Memo, which indicated that business owners could not qualify for H-1B (professional in a specialty occupation) status. It is also clear from adjudicatory trends in the “ multi-national manager” context, which include reports of denials on the basis that  business owners cannot qualify as multi-national managers for the purpose of temporary visas or lawful permanent residence, because they are not “employed” by the sponsoring enterprise–an absurdly restrictive definition of the word “employed.” These are relatively recent developments, after several years of dealing with push-back  from the agency in the form of requests for additional evidence and denials on issues such as whether a foreign national can qualify as a multi-national manager where he or she manages a staff located in one or more different countries, whether start-ups in business for a year continue to be viable when they only have a small staff, and other related challenges for those seeking to set up shop or expand operations here.  USCIS has a legitimate concern about fraud–but should not presume that a business is fraudulent simply because of its size.

This is not a plea for USCIS to focus on the economy rather than its primary mission. But to the extent that existing law and regulations offer USCIS the opportunity to support and encourage foreign enterpreneurs, business people and investors, the agency should be ready to interpret those laws and regulations as generously as possible –for the benefit of all Americans.