Written by: Tony Weigel, AILA Media-Advocacy Committee

I have participated in several meetings with Congressional staffers about immigration policy since 2006.  I have had the same thoughts and questions about these interactions every time.  I hoped to make some minimal impact, naïve as that may seem.  Afterwards, I mainly focused on the question of whether or not I had just wasted my time?  Was this person truly engaged?  Did they make some note of the issues discussed?  Would they share anything meaningful with their member of Congress?  Most importantly, did my interaction with this politician’s representative engender any trust?

I suspect that interactions and agreements among politicians and candidates are somewhat similar.  If they are, you have to wonder what goes on behind the scenes to garner endorsements.

Following the New Hampshire Republican primary, two separate endorsements of candidate Mitt Romney caught my attention.  On January 11^th, the Romney campaign announced that Kansas Secretary of State Kris Kobach endorsed his campaign, welcomed him to the team, and looked forward to working with him.  On that same day, it was reported that the Romney campaign was running Spanish-language campaign advertisements in south Florida featuring Congressional Representatives Ileana Ros-Lehtinen and Mario Diaz-Balart and former Congressman Lincoln Diaz-Balart.

It is hard to imagine how the Romney campaign managed to pull this off.  On one hand, you have three of only eight House Republicans who voted for the December 2010 version of the DREAM Act (H.R. 5281).  On the other, you have a politician that has opposed the DREAM Act at every turn, labeling it an “amnesty.”  Politician Kobach has even taken the extreme position of labeling Representative Lamar Smith’s draconian, E-Verify mandate bill, H.R. 2164, as yet another amnesty.

It would be interesting to know more about how these two diverse endorsements came together.  Did these three Florida Republicans know about the pending Kobach endorsement?  If they knew their endorsement would run concurrently with Kobach’s, exactly how did this impact their respective decisions to endorse Romney and participate in the Spanish language ad?

Regardless if these Florida Republicans knew or did not know, it is hard to imagine how one can reconcile policy differences as distinct from each other as the cold winter streets of Topeka, Kansas, and the sun-splashed beaches of Miami.  Candidate Romney has promised to veto the DREAM Act and fully endorsed Kobach’s policies.  These policy positions stand in stark contrast to those supported by these Florida Republicans and a majority of Republicans, as expressed in a recent Fox News poll.

We may never know what happened or why, but something generated mutual trust among an unlikely group of allies.  Given the incomparable divide on immigration policies, time will tell which side will win out over the other in a prospective Romney Administration.

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.

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.

Today the Administration will announce a proposed rule change that will save countless American families from the trauma of separation and, at the same time, make America safer. The proposed rule change is outlined in this morning’s New York Times.

Under the twisted immigration law the husband or wife of a US citizen is barred from applying for a green card in the US if they originally entered without proper inspection by an immigration officer. To obtain lawful status the immigrant must leave the US and apply for a visa at a US embassy in their home country. But once they leave the US they are barred from returning for up to 10 years unless they can prove their US citizen or legal resident spouse will suffer extreme hardship in their absence. But the process–known as an “unlawful presence waiver”–can take months, even years. In the meantime the family is separated, the foreign spouse may be stuck in a dangerous place–like Ciudad Juarez, Mexico where many immigrants have lost their lives–and there is no way of predicting if or when the family will ever be reunited.

The proposed rule change is huge because it will allow undocumented spouses and children of U.S. citizens to apply for a provisional waiver while in the U.S.–something not permitted under the current rule. If the waiver is granted, the foreign national will then leave the U.S., apply for his or her immigrant visa abroad, and return to his or her loved ones. The change will give countless American families a chance to stay together safely and legally.

The move is also smart enforcement because it will reduce the illegal immigrant population and allow the Department of Homeland Security to better focus its resources on keeping America secure and safe.

By Lori Chesser, AILA Media Committee

In the Catholic tradition, December 28 is the feast of the Holy Innocents. These are the babies that were killed by Herod’s soldiers when he learned of the birth of a new “king” in Bethlehem. Jesus escaped because an angel came to Joseph in a dream telling him to flee to Egypt.

I realized hearing the story again this year that our current immigration policy has resulted in innocents paying the price for the failure of Congress to make reasonable changes in the last 20+ years.

Who are these “innocents”?  They include first, the “DREAMers”:  Those that were brought here by their parents and have known only U.S. culture and education for most of their lives. They did nothing to create their situation and Congress will do nothing to alleviate it.

Second, the victims of human trafficking:  Those who are eligible for T or U visas, but are deported because law enforcement is either unaware or unwilling to recognize their plight.  While Postville is the most obvious example, countless other enforcement efforts prosecute victims.

Third, U.S. citizens living in fear of a family member’s deportation:  Those whose relatives cannot immigrate legally because of the outdated and arbitrarily-limited system.

Finally, the story of the Holy Innocents also sheds light on the failure to make a reasonable policy decision about those who are not “innocent” because they did make a mistake in entering or overstaying, but are otherwise fully integrated in our communities and way of life.  The Holy Innocents were killed because Herod felt threatened and did not want to take time to distinguish who was the real threat.  It was the ultimate “throwing the baby out with the bathwater”.

Similarly, there is no doubt that some people in the U.S. unauthorized should be shown the door and not allowed to return.  But many others are no threat and are instead a benefit to our society, culture and economy, not to mention humans deserving respect as such.

Although it may be hard for us in the land of plenty to imagine, we may have made the same choices given the same situation.  In fact, the right to immigrate for survival was exercised by Joseph to save the baby Jesus and by the relatives of the Old Testament Joseph coming to Egypt during the great famine.  It was this latter migration that eventually resulted in another slaughter of innocents by King Ramses when the Hebrews grew too numerous.  Moses was spared by the quick thinking of his mother, and later led his people to freedom as chronicled in the Book of Exodus.

Members of Congress should reflect on this story too, because it shows the dire results of failing to make just policies.  If you haven’t read it, let’s just say it didn’t work out so well for the Egyptians.

No matter our beliefs and faith traditions, these stories are timeless and instructive because they communicate truths about human nature and justice.  Let’s help our leaders remember them.

When it comes to immigration, 2011 will be remembered as the year Alabama enacted HB56, the most mean spirited state immigration law in U.S. history. It targets Latinos and other people of color and effectively mandates racial profiling by state law enforcement agents. Since it went into effect last Fall, Alabamans have been victimized by due process violations, acute shortages of essential workers, and the creation of a climate of fear which has led many Latinos—legal and illegal—to flee the state. The media has been full of graphic images of produce rotting in unattended Alabama fields and idle machinery abandoned amid the flight of terrified workers. Alabama officials have been repeatedly embarrassed by the shocking arrests of foreign auto executives detained by local law enforcement for failure to produce immigration papers. As 2011 draws to a close, Alabama politicians, including Governor Robert Bentley, who signed HB56 into law, are seriously considering dropping its most draconian sections.

If Alabama’s HB56 dominated the immigration developments in 2011, Arizona’s SB1070 will be sure to dominate in 2012. The U.S. Supreme Court will hear the Obama Administration’s constitutional challenge to Arizona’s immigration law, enacted in 2010 but temporarily blocked by the courts. The effect of the Supreme Court’s ruling on immigration policy—and beyond—should not be underestimated. Should the Court strike down SB1070 it will reaffirm, in a loud and clear voice, that immigration policy is exclusively a federal matter, inextricably tied to the idea of the United States as a sovereign nation. However, should the Court uphold SB1070 other states will certainly follow Arizona’s and Alabama’s lead, resulting in a disparate patchwork of state immigration laws throughout America. The challenge then may no longer be limited to the federal government’s plenary power to regulate immigration, but to the very idea of the United States as an indivisible nation. Stay tuned.

2011 will also be remembered as the year of immigration enforcement. Nearly half a million people were deported from the U.S., undercutting those that claim the Administration has not enforced the law. To the contrary, President Obama—for better or worse—has deported more illegal aliens than any president before him, including his predecessor, George W. Bush. But amid all the removals in 2011, Obama tried a new, potentially very effective tool—common sense immigration enforcement. In a policy announced in June, the Administration directed ICE to focus its energy on the deportation of violent criminals, drug dealers, and terrorists. And while Obama cannot grant citizenship to any undocumented immigrant, he can certainly direct immigration agents to use their common sense in enforcing the law.

As 2011 draws to a close the big question remains: When, if ever, will Congress overhaul America’s broken immigration system; or even pass the DREAM Act, which would help promising undocumented youth earn their way to lawful status. But 2012 is an election year, and the reality is that the politicians in Washington will not touch an issue as explosive as immigration reform.

In the meantime, Americans can only hope that whomever they send to Washington in November will roll up their sleeves and get to work on an immigration policy that creates American jobs, protects American families, restores due process, and ensures America’s competitiveness in a global economy.

It’s a little unnerving when the Grinch tweets you just before Christmas.

It started Wednesday when I read a shocking article in the New York Times about an undocumented immigrant who suffers from a life threatening kidney disease and requires dialysis.  Because of a bizarre legal anomaly the government will cover the cost of his dialysis—$75,000 a year—but not the cost of a kidney transplant—$100,000—which would make the dialysis unnecessary and save hundreds of thousands of dollars over time.

The article quoted Rep. Dana T. Rohrabacher, Republican of California, who opposes giving any medical aide to undocumented immigrants.  While I believe his position is extreme, indeed self-defeating, Rohrabacher is obviously entitled to his view. But what was appalling was the mean spiritedness with which he expressed it. “If they’re dead” Rohrabacher said, “I don’t have an objection to their organs being used.”  He added, “If they’re alive, they shouldn’t be here no matter what.”

Was the Congressman really saying that the only worthwhile illegal immigrant is a dead one?   I certainly hope not, but given the ugly language of the anti-immigrant restrictionists including, sadly, some members of Congress, it wouldn’t surprise me.

I tried to put the whole thing out of my mind.  But later that evening, while catching up on my Twitter feed, the following tweet about Rohrabacher’s callous comment popped up from America’s Voice.

 Award 4 the most heartless statement in the face of human suffering 2 @DanaRohrabacher http://bit.ly/vi4FjV

I realized I wasn’t alone.  Others were shocked by the cold-bloodedness of Rohrabacher’s remark.  But it was late at night, so I just retweeted the AV’s tweet and went to bed.  I slept well, figuring the issue of Rohrabacher’s insensitivity in the face of human affliction had been settled on the social network.

I was wrong.

When I awoke the next morning I discovered that just after midnight Rohrabacher had sent me the following tweet:

 glad benevolent people like U willing to reduce health&ed benefits to your own families for illegals rather than tax us

Then, about an hour later, he tweeted again,

U mean our own people suffering because not enough to care for them…or illegals on whom u’d spend our limited $?

His tweets included a nice picture of Rohrabacher leaning against a railing in front of a bay. “Well”, I thought, “at least he’s more discrete than Anthony Weiner.”  In any event, I immediately tweeted Rohrabacher back, hoping to favorably inform his views on immigration and impress upon him that he should become an advocate for comprehensive reform.  But it’s tough to do that in 140 characters or less.  So I tweeted:

I mean #immigration reform will create jobs and increase wages for #Americans, Y dont you understand that?

To which the Congressman tweeted back:

R U kidding? Permitting illegals to stay& work draws tens of millions more, bidding down wages, draining health&ed funds

At this point I figured Rohrabacher needed some facts and figures; something other than the half-baked restrictionist talking points he has apparently been reading.  My return tweet referred him to a joint report published in early 2010 by the Immigration Policy Center and the Center for American Progress entitled Raising the Floor for American Workers which makes it crystal clear that immigration reform, including a pathway to lawful compliance for the millions of undocumented foreign nationals, will boost the economy to the benefit of all Americans:

W all due respect Congressman, ur wrong; CIR will add 1.7t to GDP, in tax rev; and 1m jobs; read IPC report

But Rohrabacher would have none of it—apparently not wanting the facts to get in the way of his views.  He tweeted:

thanks 4 the respect, but if U believe that legalizing those here and drawing tens of millions more is good for US Ur dreaming

Dreaming?  I guess I am.  As are a lot of other people—including thousands of undocumented immigrant youth who long to give back to the only country they know and have struggled against all odds to enrich.  So I tweeted,

Mabye I’m dreaming–like many others–but the current situation is a nightmare; America needs solutions not empty talk.

But the Congressman, determined to have the last tweet, responded,

if Ur so-called solution is legalizing the status of illegals give me empty talk, Ur solution will bring more & make it worse

I’m not sure what to make of my ongoing twitter conversation with Congressman Rohrabacher.  Sure, it’s tempting write him off as a heartless old Grinch.  But I’m not going to do that.  After all, this is the holiday season, a time of reflection, renewal, and goodwill towards others. I want to believe that if Rohrabacher allows himself to see the injustice and pain caused by America’s broken immigration system then his heart, like the mean old Grinch’s, just might grow three full sizes. Maybe then he won’t long to steal Christmas from the most vulnerable among us.

In the meantime I’m going to go check my Twitter feed.  Who knows? Maybe Ebenezer Scrooge is following me.

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.

Two weeks ago, the immigration world was abuzz due to the bipartisan support received for a narrow, extremely technical fix to employment- and family-based immigration quotas.  We learned yesterday, however, that one senator has blocked the bill from coming to a vote without substantial changes, making it extremely unlikely to be passed at all.  Hearing that reminded me of what may be the least effective legislature of all time, the Sejm of the 18th Century Polish-Lithuanian Commonwealth, in which any member could nullify the work of the whole session of the legislature by shouting, “Nie pozwalam!” (“I do not allow!”).  Here we are, back in the Sejm instead of the Senate, and a single member is effectively vetoing the entire legislature’s work.

The bill we are talking about is called HR3012, the Fairness for High-Skilled Immigrants Act.  The thing is, HR3012 does not add any new visas to address the quota backlogs for approved legal immigrants awaiting the availability of immigrant visas each year.  You read that correctly: HR 3012 would not allow in one more immigrant than current law allows.  It would merely change the rules of distributing our current quotas of new immigrants per year, allowing higher-skilled immigrants from India and China to wait the same length of time as higher-skilled immigrants from all the other countries in the world, and reducing the disparity in the family-based system between the worldwide backlogs and the longer backlogs faced by natives of Mexico and the Philippines.  (Readers interested in more detail can check out the National Foundation for American Policy’s incredibly detailed report on the quota backlogs.)

Legislation needs to pass through both the House and the Senate, however, before it can be presented to the President and become a law.  And in today’s Senate, it is becoming apparent that just one Senator can stop a bill from coming to a vote, even where the other 99 senators would agree with the 96% of the House that voted for the bill (The House voted overwhelmingly — 389-15– in favor of HR3012 two weeks ago).  The Senator blocking the bill is Charles Grassley (R-IA).

Senator Grassley has placed a “hold” on HR3012, preventing it from coming to the floor for a vote.  Senator Grassley released a statement saying that his hold was motivated by concern about “future immigration flows” and that “it does nothing to better protect Americans at home who seek high-skilled jobs” in today’s tough economy.  Here’s a reminder for Senator Grassley, however: every high-skilled immigrant affected by this bill has already been certified as filling an otherwise-empty vacancy in the US labor market, or having skills that are in our national interest to retain in the US.

Was the Senator concerned with the merits of the bill, about which I am rather agnostic?  The bill, after all, simply changes the rule of visa allocation to “first come, first served,” which certainly seems fair enough.  The primary question the bill addresses — given that it does not change the number of high skill immigrants allowed in per year — is whether a surgeon from India should have to wait 3-6 years for a green card, while an engineer from the Philippines or Germany doesn’t have to wait at all, as under current law, or whether the surgeon and the engineer should both have to wait 1-2 years.

Of course, Senator Grassley should know this, given that he is the ranking Republican on the Judiciary Committee and sits on the Immigration, Refugees and Border Security Subcommittee.  His real objection appears to be not to fairness in the process of allocating green cards for high skilled immigrants, but to the temporary visas companies and hospitals use to hire those high-skilled immigrants while they wait for their green cards.  Yesterday on the floor of the Senate, Senator Grassley said he was willing to release his hold, but only if HR3012 was changed substantially – eliminating any changes to family based visa allocation, being less fair to immigrants from India and China, and tacking on a package of onerous restrictions for temporary work visas – a package that the House and Senate have refused to consider a number of times over the past years.

Senator Grassley’s thwarting the will of the majority in pursuit of his own narrow vision of which immigrants should be allowed in to the United States highlights the dysfunction of today’s Senate.  That dysfunction has been noted elsewhere.  While such a procedural move may prevent the majority from considering a bill that a minority opposes, this “hold” is on a bill with a very limited effect – and with overwhelming, bipartisan support.  The lesson of the 18th century Sejm is instructive: paralyzed by vetoes, the legislature was unable to react to a changing world, and eventually their country was divided up between larger European powers.  If one Senator can stop even a legislative “tweak” like this from happening, I am not optimistic about our government’s ability to make laws to govern this country in the 21st century.