Kris Kobach, anti-immigrant restrictionist lawyer and Kansas Secretary of State, claims to know something about immigration law, but in our Friday night CNN debate he was able to do little more than throw around phrases like “backdoor amnesty” and “illegal aliens”.  The subtext of these words is sinister–that America is under a Latino invasion which threatens our culture, language, and way of life.    Fixing America’s badly broken immigration system is not part of Kobach’s plan.  What he and his ilk want is to put an end to immigration, period.  And since they have no helpful plan for America, restrictionists like Kobach rely on ethnically charged words and phrases—like the ones used by Kobach on CNN.

Not surprisingly Kobach failed to articulate even a single immigration policy solution.  He started off by making the patently false claim that the proposed processing tweak announced by the Administration on Friday is “phase two” of an “amnesty”.  That couldn’t be farther from the truth.  In fact the proposed change will make it possible for the spouses and children of U.S. citizens to apply for a family unity waiver while in the U.S.   It’s a technical adjustment that will keep American families safe and together during administrative processing.

And contrary to what Kobach said, not one letter of the law was changed.  The immigrants it would affect get nothing to which they were not already entitled.  To obtain the family unity waiver, applicants must still meet the strict letter of the law which requires they prove that family separation will cause their American citizen husband or wife extreme hardship.  Currently, these immigrants must spend months, even years, abroad waiting for the bureaucracy to process their waivers.  The proposed change will permit the waiver request to be decided stateside.  It will alleviate bureaucratic delay and reduce processing backlogs at U.S. embassies abroad.  It’s good government pure and simple.

At some level Kobach must have understood he couldn’t seriously argue with a processing fix that promotes legal immigration, keeps American families together, and protects the integrity of our borders.  Realizing he had nothing of substance to add to the debate, Kobach concluded with the phrase “we can all agree”, words used by those who know they not only have lost the argument but are on the wrong side of the issue with the listening audience.  It’s a time tested debate trick designed to fool the viewers into thinking he and I were not that different.

Fortunately we are.

I advocate for an immigration policy that protects American families, keeps the U.S. globally competitive, and restores civil liberties.  Kobach wants to spread the same climate of fear he helped create in states like Arizona and Alabama which have enacted hate filled anti-immigrant laws he helped write.

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.

Ten Americans kept their jobs today in spite of USCIS, which seemed intent on ensuring that those jobs go overseas or just go away.

What happened? USCIS had refused to extend the L-1 status of a multinational manager, who had opened a new office and employed ten U.S. workers, finding that a small company could not possibly need a manager. Faced with this decision, the company had four choices: move to another country (and take those ten jobs with it); close down altogether (extinguishing those ten jobs altogether); appeal (which, given the nearly two years that that process takes, effectively would be one of the first two choices); or go through the costly, duplicative and time-consuming process of obtaining an E visa from the U.S. consulate in his home country. Though tempted to take the first option, this business leader was not ready to give up on the U.S., and instead took the fourth option. And the State Department did what USCIS would not: ensured the future of those jobs by granting the visa.

Money that could have been invested in further building the business was instead invested in preparing the E visa and traveling abroad for the interview to obtain it. While the AILA member who represented him was happy to have the fees, he’d rather have had a sensible adjudication of the L-1 extension.

This is not an economy in which we can afford to throw away jobs. And, while our immigration laws need fixing in many fundamental ways, there is a fair amount of sense in some of the rules, including those that have long governed the migration of multinational managers. But those rules need to be followed. Certainly, adjudicators are only human, and are undoubtedly responding to unemployment figures and concerns. But those responses overlook the macro-economics of immigration: it’s not a zero sum of immigrant equals job loss. Quite the opposite: study after study has shown that immigrants contribute to the economy. This is not counter-intuitive: this one L-1 plainly equaled ten U.S. jobs. There’s thousands more like him.

But where is USCIS? Senator Grassley has made a fuss about agency “whistleblowers” who decry the agency’s leadership urging a bit more generosity in adjudications. And certainly that generosity has not been forthcoming: if anything, adjudications continue to reflect a growth-killing stinginess. Is the problem entrenched biases? Lack of training? Lack of clear guidance? Some combination of all these factors? Whatever the problem, it needs to end here and now.

America cannot afford it any longer.

Senator Chuck Grassley (R-Iowa) is not happy.

He wasn’t always that way.  In fact, if you look at his website you’ll see that not long ago he was smiling at his constituents back in Iowa.

Why is he so mad?  Well, I think it started last summer when he got his hands on an unsigned draft USCIS memorandum which showed someone in the agency had the audacity to think through ways in which USCIS could apply the dysfunctional immigration law in a functional way.  The Senator wasn’t impressed that the government was actually thinking creatively.  All he saw was “backdoor amnesty.”

Now it seems he is upset because some agency insiders told him they were being pressured by the leaders of the United States Citizenship and Immigration Services into granting too many visa petitions which risks letting fraudsters and other ne’er-do-wells into the country.  That has Grassley so livid he issued a press release and wrote a letter to Janet Napolitano the Secretary of Homeland Security demanding an immediate investigation of “USCIS visa approval policies” by the Office of Inspector General.

Senator Chuck Grassley today asked the Secretary of Homeland Security and the Inspector General who oversees the U.S. Department of Homeland Security to address evidence from statements made by immigration officers that senior U.S. Citizenship and Immigration Services leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible.

Grassley claims the information emanates from agency “whistleblowers” who are upset about the goings on at the California Service Center, which specializes in temporary professional visas, including those for scientific researchers, physicians, engineers, teachers, artists and international executives and managers.

Grassley first raised concerns over U.S. Citizenship and Immigration Services visa policy after whistleblower accusations that supervisors directed staff at the California Service Center to “find a way” to approve visa applications and expressed a desire to “instruct generosity” when processing immigration benefits.  Since then, additional agency staff has come forward with allegations of retaliation and pressure asserted by leadership.

This doesn’t sound good.  But can Grassley be sure it’s true?

The problem, as I see it, is that Grassley has only heard from a small group of insiders.  If Grassley really wants to get a picture of USCIS visa approval policies he should file a couple of visa petitions with USCIS himself and see what happens.  I imagine Grassley could start out with a petition for a highly specialized foreign engineer whose rare skills are needed for the success of a critical U.S. infrastructure project.  A couple of weeks after he files the petition with the USCIS Grassley will undoubtedly receive a ten-page Request for Evidence from the agency threatening to deny the petition if he doesn’t prove “engineering” is a profession, provide evidence of the company’s ability to pay prevailing wages, send a list of contracts and invoices for the past year, provide a schedule of proposed worksites and supervisors, offer a breakdown of the engineer’s job duties, including the percentage of time devoted to each specific duty, and on and on and on.  At that point Grassley will see for himself that despite what the USCIS “whistleblowers” might be whispering in his ear, visa applicants usually have to jump through hoop after hoop to “find a way” to the USCIS’ so-called “generosity.”

Next, Grassley should file a visa extension request for a foreign company that opened a U.S. branch last year and, after USCIS approval, transferred a key executive to oversee the U.S. operation.  He should be sure to pick a company that has shown a healthy profit in its first year in America, created jobs for U.S. workers, and successfully met the goals of its U.S. business plan.  Grassley will be stunned when USCIS denies the visa petition—despite the immediate job loss to U.S. workers—based on grounds that don’t exist in the law.

In short, I suspect that if Grassley’s petitions landed on the desks of the very same USCIS “whistleblowers” that are fueling his anger, he would quickly see how the “generosity” he decries in his letter to Napolitano is in fact sorely lacking within the USCIS benefits bureaucracy.

The truth, if Grassley is interested, is that a “culture of no” continues to poison too many USCIS adjudications.  Unfortunately, what Grassley doesn’t seem to fathom is that a USCIS culture of “finding a way” to “yes” is another way of saying “say yes if the applicant has shown he or she is eligible by a ’preponderance of the evidence’.”  That means that applicants are required to prove they are deserving of an immigration benefit, such as a visa or employment authorization, but the law says that if it is more likely than not that a benefit is deserved, it should be granted. Unfortunately, in reality, deserving immigrants are turned away from our shores every day as the result of improper decision-making by USCIS “insiders.”

But Grassley may be right about one thing.  It is high time for an OIG investigation of USCIS decision-making.  In fact he’s spot on.  A full investigation would likely reveal an abandonment of the rule of law in favor of entrenched biases, and a propensity to apply the fraud label to every typographical error and disagreement of perspective.

If Grassley is concerned about helping Iowa and the rest of the nation jumpstart this jobless recovery he shouldn’t defend chronic bureaucratic opposition to meaningful agency reform.  To the contrary, Grassley should enthusiastically encourage all government leaders who have the courage to work internally within their agencies and externally with stakeholders to promote transparency, openness, and meaningful dialogue.  America’s leaders are obligated to call for change and to prevent researchers, entrepreneurs, innovators and academics from being further stymied by those who look for a way to get to “no.”

“Representative [Lamar] Smith … called for the Immigration and Naturalization Service to exercise prosecutorial discretion in hardship cases. That is, immigration officials would simply decline to proceed with a deportation case… Second, Mr. Smith proposed that the attorney general use a provision of immigration law that allows her to ‘parole’ aliens into the country for ‘’urgent humanitarian reasons.’ Parole, he argued, could be used to prevent deportation as well as to allow entry… ‘The government can always do what it wants to do in hardship cases,’ the Congressman said. ‘We should not let the letter of the law get in the way of the spirit.’ … He also said that a large number of ‘hardened criminal’’ aliens were ‘’still slipping through the cracks’ and not being deported. ”Why not use your resources on them?” he asked. ‘Why are they spending their time on cases that cry out for compassion? They’ll never be able to persuade me that they can’t do that.’” –New York Times, March 18, 2000

 
In 2000, Lamar Smith’s 1996 legislation came under attack for its harsh and unforgiving nature, which resulted in the deportation of people in sympathetic situations, such as young college students who had grown up in the U.S. and gotten trapped in the system. However, rather than amend his law to ameliorate these effects, Mr. Smith (R-TX) urged the then-INS to exercise its discretion to avoid these results in sympathetic cases. The INS did just that, and prosecutorial discretion in the immigration context became a publicly articulated policy.

Fast-forward to today, when prosecutorial discretion has been largely ignored for years and when, in the intervening years, the cruelly indifferent 1996 Act has created countless more such sympathetic cases. Finally, in 2010, DHS officials have started to conduct internal discussions on how to deal with these kinds of cases, how to operate efficiently after years of disjointed tail-chasing, and how to go after hardened criminals instead of the cases that cry out for compassion, just like Mr. Smith urged.

So what happened? Entrenched interests within the department, fearful of this change, have leaked internal “think piece” discussion memos to members of Congress, including Mr. Smith. And the reaction? You guessed it: ” ‘The President has promised border security and immigration enforcement. He has said we must hold individuals accountable for their illegal acts,’ said Rep. Lamar Smith of Texas, the top House Republican on the Judiciary Committee. ‘But now we find out the truth: while saying one thing to the public, the Obama administration is scheming to ensure that immigration laws are not enforced.’”—per ABC News, July 30, 2010

The sheer hypocrisy of Mr. Smith and his co-ranters should be sufficient to enable DHS to treat these attacks with the lack of seriousness that they deserve. But instead we see very little of the Department standing up for the principles behind these discussions. Yes, they are not policy. They were just discussions. But many of the ideas in these memos are excellent, and should be implemented—soon. But instead of implementation, the Administration appears to be running for cover.

DHS, stand up. Say that we need these reforms, and why we need them. Then make them happen. Just because Congress is paralyzed doesn’t mean you need to be. As Mr. Smith told you a decade ago, you have the legal basis to do it. So do it.

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.

One of the strongest arguments in favor of comprehensive immigration reform is that it will make America more prosperous and competitive.  All credible studies show that an immigration system which meets the needs of businesses and US workers will add trillions to the economy, raise wages, and put Americans back to work.  Simply stated, immigration reform is good business and good for America’s future.

That’s why I was very excited to attend and give the opening remarks at the EB-5 Investor’s Conference which took place last Friday in Boston before a sell-out crowd.  Last month in my installation speech at the AILA Annual Conference I recalled Ronald Reagan’s final farewell to the nation in which he described his vision of America as beckoning immigrants with “the will and the heart” to get here.  Reagan understood that America’s strength is its openness: its celebration of creativity and new ideas.  And who is a better example of that then an immigrant who is willing to risk hard earned resources for the chance at the American Dream?

In his introductory remarks EB-5 Investor Visa conference chair Lincoln Stone referred to the visa as the “Golden Ticket.”  His description is spot on.  The visa has lead to investment across the US in areas that suffer higher rates of unemployment.  To be sure, it is a fast developing area.   Practitioners and entrepreneurs must master not only the intricacies of the law, but be sure to be aware of the ethical and fiduciary issues that come with the territory. Yet, it is beyond dispute that by attracting much needed capital to the US this visa category has the potential to indeed become a “Golden Ticket” for America.  What else can you say about a visa that by definition directly creates jobs for US workers and helps stimulate the US economy?

And can you imagine how golden that ticket would be if, coupled with a successful immigrant investor program, Congress passed comprehensive immigration reform?  The Center for American Progress and the Immigration Policy Center have pointed out that CIR will add at least $1.5 trillion in cumulative U.S. Gross Domestic Product (GDP) over 10 years. Over the first three years, higher personal income would generate increased consumer spending—enough to support 750,000–900,000 jobs in the United States—as well as increased tax revenues of $4.5–$5.4 billion. The benefits of additional growth in the GDP would be spread broadly throughout the U.S. economy, but immigrant-heavy sectors such as textiles, electronic equipment, and construction would see particularly large increases. Moreover, wages would rise for both less-skilled and higher-skilled U.S. workers. And these figures are supported across the political spectrum.  An August 2009 report by the libertarian CATO Institute found that comprehensive reform would increase U.S. GDP by $180 billion in 2019.

All we need now is for the Administration and Congress to role up their sleeves and to get to work.

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. . . .”

Yesterday the USCIS released its FY 2009 immigrant visa numbers. More than a million people legally immigrated to the United States in FY 2009. Almost 60% of those folks did so through the adjustment of status process, meaning they were already in the U.S. when their place in line was reached. While not disclosed by USCIS, the supposition is that a number of those folks were actually out of status or, even undocumented, and were able to adjust status using INA 245(i), thePublish Post penalty law still available to anyone who was a direct or derivative beneficiary of an immigrant visa petition or labor certification filed before April 30, 2001.

Bernie Wolfsdorf, our President during this tumultuous year is my Immigration Hero today.

Last year, the 9th Circuit Court of Appeals issued a decision that would have terrible repercussions down the road for anyone applying for an Extraordinary Ability Petition (“EB-1″) at the California Service Center (“CSC”). In Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009), a panel of the 9th Circuit Court of Appeals allowed the CSC and the Administrative Appeals Office (“AAO”) to basically “make up law” as it pertained to the EB-1 category, and set a precedent for the USCIS to do it in other areas (like the recent “Neufeld” H-1B Memo).

Bernie, who hates injustice anywhere, took this case on pro bono to seek a rehearing in the 9th Circuit. Together with the terrific lawyers in his office, colleagues around the United States, and a brilliant amicus brief from the American Immigration Council (the AIC’s brief in this case was exceptional–a key to this victory), a Petition for Rehearing was submitted late last year. The Petition was well done, well argued, and most importantly, the right thing to do at the right time.

Today, the 9th Circuit issued a new decision in Kazarian v. USCIS. While the decision did not reverse the denial of the EB-1 petition, it did vacate the language of the previous decision, and laid down the law to the USCIS. These words will live on in many future court decisions, and should be burned bright into the minds of every USCIS Adjudicator, Supervisor and Service Center Director:

. . . . neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5, [citing] Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008).

WOW! Could this “rule” be spelled out more clearly? The message to USCIS is clear. FOLLOW THE LAW. DON”T MAKE THINGS UP! The challenge to each of us now, is to take this precedent and begin bringing all of the “made up” requirements that USCIS has been putting in RFE’s and denials over the last several years to the Federal Courts, and seek true justice for our clients. Even if that means doing it pro bono.

Every immigration lawyer and every prospective petitioner for immigration benefits owes our President, Bernie Wolfsdorf, a debt of gratitude for not only taking on injustice, pro bono, and fighting to correct a wrong, but for doing so in the midst of what I personally know to be the busiest year of his life.

Bernie. You are my Immigration Hero. There is a special place in heaven for people like you.