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.

It’s fair to say that no one likes price increases.  However, any price increase is far easier for a consumer to swallow if the consumer feels that he or she is getting something of value in return for the additional money paid, whether it is an improved product or more efficient service.  Would that we could rationalize the fee increases announced by USCIS today by saying that we and our clients are getting more for the money. Unfortunately, we’re not.  In fact, it seems as though we are getting far less than we ever did, in terms of efficiency, accessibility and quality of adjudications.

Yesterday, due to lower than projected fee revenues, USCIS proposed a fee increase that will amount to an average increase of  10% across the board.  USCIS will issue the formal proposal on Friday and there will be a 45 day comment period.  This, in combination with the 66% fee increase that was implemented in 2007, constitutes a tremendous hit in the pocketbook for a variety of users of immigration services. For example, an I-130 petition for an alien relative will jump from $355 to $420, under this proposal, thus impacting those who want to be reunited with family members.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also bear some of the brunt, with I-140 petitions for immigrant workers increasing over $100, premium processing going up by $225 and a brand new fee of $6,230 to establish a Regional Center under the EB-5 program. And –perhaps the coup de grace—fees for filing I-290 Notices of Appeal will increase from $585 to $630, a $45 dollar increase that will allow us to continue to file appeals that take over 2 years to adjudicate and generally conclude with either a rubber stamping of the original decision, or as in a handful of recent AAO decisions, a tortured legal analysis resulting in increasingly restrictive interpretations of the law.

Why do these fee increases feel like a punch in the stomach to immigration practitioners?  Because they come at a time when the quality of decision-making and the ability to correct even the simplest errors or address basic problems with USCIS are at an all-time low.  A small sampling of the problems we have all experienced with alarming increased frequency over the past few years:

• Application of new extra-regulatory standards in case adjudication. Example: The bar for L-1B eligibility has been raised to such a high level that petitioners are virtually required to demonstrate either that the beneficiary possesses extraordinary ability or that the company would fold without the services of the beneficiary.
• Adjudication of issues not within the province of USCIS:  Service Centers have issued RFE’s on I-140 immigrant visa petitions picking apart legitimate employer requirements on a labor certification that has already passed muster with DOL.
• A “pick and choose” attitude with respect to previously issued long-standing agency guidance.  Example: Service Centers are now routinely issuing RFE’s on extensions of stay in a flagrant undermining of the Yates Readjudication memo which clearly discourages readjudication except in cases of material change or clear error.
• Lack of accessibility of agency officials and decision-makers. Example: With the exception of those who pay handsomely for the privilege of premium processing adjudication, access to an adjudicator or an administrator at a USCIS Service Center has become a thing of the past. Try getting a mistake in a priority date on a notice fixed. Try communicating with a Service Center when a beneficiary with a pending adjustment has become current due to the approval of an immigrant visa in a different preference classification.  The new lockbox system –a system that in my view serves only the interests of efficiency  without inspiring confidence in the security or quality of the processing of cases– has exacerbated that problem even further. An AILA member reported sending an e mail to the lockbox support e mail address complaining about an improper rejection of a case. The response requested the receipt number. It would be funny if things like this did not happen to all of us so frequently.
• Lack of predictability in decision-making: Example: The blow-back from the Neufeld memo’s redefinition of the employer-employee relationship for H-1B purposes.  An employer who lawfully places H-1B employee at a client site over a long term can no longer tell the client whether that employee’s stay can be extended. And adjudicators are now artificially limiting periods of stay for H-1B workers based on unfounded presumptions regarding lack of future work. Another example: Service Center reliance on non-predecent AAO decision in case adjudication –to the point of parroting the language of those decisions in RFE’s and denials..
• Lack of respect for the role of counsel in various proceedings: Examples:  Practitioners report that they are sometimes not copied on RFE’s, and that district offices from time to time have barred attorneys from accompanying their clients to adjustment interviews.

On a daily basis, these problems in the adjudicatory process hurt families, hard-working individuals who are trying to engage in the appropriate legal processes in order to remain here, large businesses trying to retain talent, and small businesses that want to make a go of it in the U.S.  In one of the first stakeholder meetings he held, Director Mayorkas vowed to create a culture in which a benefit would be approved if there is no clear basis for denying it. Unfortunately in the field, the opposite seems to be occurring:  adjudicators often seem to be searching for a basis to deny an otherwise approvable case.  This has been a trend for several years—but the source of the problem is a mystery.  Director Mayorkas stated that USCIS is closely reviewing the adjudicatory process to improve consistency and quality.  But USCIS is going to have to dig deep, confront some difficult structural issues, and implement some massive, culture-changing fixes if the agency wants its products and services to be worthy of their new price tag.  Until that happens, each time I attach a check to a filing, I’m afraid I won’t be able to shake off the phrase from the classic Dire Straits song that’s been going around in my head since the fee increases were announced: “Money for Nothing. . . .”

Last week a member of the CBP committee forwarded an article about a Canadian national, Desiderio Fortunato, who refused to turn his car engine off at a border crossing point east of Vancouver, until and unless the CBP officer said “Please.”

http://a123.g.akamai.net/f/123/12465/1d/www.nationalpost.com/0304_border.jpgDan

Apparently both parties dug their heels in, with the CBP officer continuing to tell the Canadian to turn his engine off–omitting the magic words–and Mr. Fortunato insisting on a modicum of courtesy. Instead, he received a face full of pepper spray, a three-hour interrogation and a request (OK, maybe the word “request” isn’t quite the right word here) to return home.

I have been thinking about the scene for the last week. First I wondered why it wasn’t featured on that hit show “Homeland Security”–maybe it could have saved that wonderful concept from cancellation! Then I imagined the call from the CBP Officer’s mother after she read about her son in the paper: “I’m truly appalled at your behavior, dear. Didn’t I raise you better than that?” Finally I decided that Mr. Fortunato is my new hero.

Clearly, CBP Officers have a vital, and often difficult task. Their jobs call for a balance between quick decision-making and sound judgment, as well as a vast knowledge of both immigration and customs laws. The ultimate goal is to protect our country from threats to national security while allowing access to the U.S. by those who have legitimate reasons to enter.

Most of the time, the reports I hear about encounters with CBP relate to a lack of knowledge of the immigration laws. Some recent examples: A client’s employee, entering in Miami, had her L-2 visa cancelled because she also had an advance parole. She was instructed to use the advance parole only. Yet another employee was threatened at the U.S.- Canada border for using his H-1B while he had an adjustment pending, and told that he would not be permitted to enter the next time. There have been numerous cases in which CBP officers have bullied LPR’s into giving up their green cards after a long absence abroad, notwithstanding re-entry permits and/or significant ties to the U.S. A client of an AILA colleague had an O visa readjudicated at entry–apparently notwithstanding the judgment of a CIS Service Center and a consulate, the individual was simply not that extraordinary, in the eyes of the CBP. My personal favorite from the last few weeks, from my home-town airport–Dulles–was a former F-1 student entering with an immigrant visa after consular processing. The student had a period of unauthorized employment in the U.S. before departing to obtain the immigrant visa. CBP detained him at Dulles, and then put him in proceedings, claiming (and this is after consultation with a supervising CBP officer) that he was subject to the 10 year bar.

These anecdotes are of course, just a sampling, and they are deeply disturbing, both in their seeming arbitrainess, and the lack of solid legal ground evidenced in these decisions. I confess that I am losing patience with the standard response, “It’s a training issue.” At this point, I would offer to train CBP myself, at no cost to the government, and I’m sure I would have an army of willing volunteers from AILA. However, I can even understand that CBP officers can’t know all the rules all the time—as long as they are able to politely excuse themselves to look things up or check with a colleague. But I’m right there with Mr. Fortunato–there is absolutely no place for rudeness at the border.

DHS has to understand that CBP is essentially our face to the outside world. The way anyone is welcomed at a port of entry may well form that individual’s impression of our culture. We are welcoming visitors who want to explore beautiful landmarks (and spend money here) as well as business people who want to explore new investments (and spend money here!) We are welcoming professionals who lend their talents to U.S. enterprises, fiances of U.S. citizens, lawful permanent residents who have chosen our country as their new home. By extending common courtesy on a daily basis to those who come across our borders, CBP could be a symbol of the words of President Obama in his inauguration speech: “Know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity.”

That is not to say that we should fling open our doors and let all through who wish to enter. But any person who has read a parenting book or dealt with a toddler tantrum can tell you that it is possible to say “no” firmly and politely. And CBP Officers have more tools at their disposal to deal with uncooperative individuals than parents do. If a foreign national does not respond well to “no,” CBP Officers can do a lot more than send him to his room.

It is really too bad that we can’t regulate manners. And it’s even sadder that we would have to.