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Our Grandparents were Entrepreneurs Too!

Orchard Street Facade, Photograph by Keiko Niwa

Anyone who believes that the entrepreneurial spirit is bred in the business school or the boardroom should visit “Shop Life,” a new permanent exhibit that opened recently at the Lower East Side Tenement Museum in New York. The Tenement Museum tells the story of the immigrant families that lived at 97 Orchard Street in Manhattan from 1863, when the apartment building was constructed, to the 1930’s. In that small window of time, in these tiny tenement rooms, the daily lives of early urban immigrants vividly unfolds. Now, at street level, a different story is told–the story of the businesses these tenement dwellers created when they came to the United States. As Morris Vogel, the Museum’s Director aptly put it recently during a special reception celebrating the new exhibit, the tenement apartments portray how new immigrants got by; Shop Life shows how they got ahead.

In one of two store-front areas the Museum has reconstructed the saloon that occupied the space from 1864 until 1886. The saloon was owned by John and Caroline Schneider, two German immigrants who sought to attract a growing German immigrant community that had formed an enclave in the Lower East Side. More than just a spot to find good German lager beer, the Schneiders’ saloon was the heart and soul of the community; a place for Sunday family gatherings, music-making, job and apartment-hunting and business transactions. It was a hub where Germans from various provinces gathered and felt connected to each other in a way that prefigured the eventual mid-century unification of Germany. But it was also a place where German immigrants began to develop connections to their newly adopted homeland, engaging in political discussions and preparing to enter American cultural and political life.

In the other street-level storefront, the Museum offers a delightfully 21st century interactive exploration of the other businesses that sprang up in the tenement –a kosher butcher shop, an auction house and a 1970’s underwear store. In this space there are also video interviews with today’s Lower East Side shopkeepers, linking past to present.

Schneider Kitchen, Photograph by Keiko Niwa

Shop Life opens at a particularly significant moment in our ongoing national dialogue about immigration reform. The exhibit is not simply about immigrant mom-and-pop businesses; it is representative of all immigrants who decide to rely on their own ingenuity, creativity and connections to make a life here–very often establishing a livelihood for others and a thriving community around their enterprises–whether it is a social community such as the one that grew up around the Schneiders’ saloon, or a commercial community such as the one that envelops an immigrant-founded business like Ebay. At a time when increasing numbers of legislators, policy makers and thought leaders are recognizing that the United States must find ways to open its doors more widely and affirmatively to foreign nationals with ideas and initiative, Shop Life is an important reminder that the immigrant entrepreneurial spirit is not something new, but is a vibrant part of the fabric of our immigrant heritage that has contributed substantially to our success as a nation.

Written by Eleanor Pelta, AILA Immediate Past President

The H-1B Slow Dance: US Businesses Deserve Better

USCIS has told AILA that between the California Service Center and the Vermont Service Center, perhaps as many as 17,000 cap-subject H-1B petitions filed between April and mid-June remain unadjudicated, and many remain completely “untouched” by examiners. That means that USCIS has done very little, or nothing, with nearly 20% of the petitions filed by U.S. employers seeking the services of foreign high-skilled workers in fields as diverse as science, technology, business, education and marketing. USCIS has refused AILA’s requests to speed up processing of the backlog of H-1B petitions, saying that businesses that want faster service should request Premium Processing.

Telling a large corporate petitioner to pay $1225 for Premium Processing Service in order to get an H-1B petition acted on after it has sat untouched for four months or more is bad enough – you’d think that for the more than two thousand dollars in filing fees that most petitioners pay that USCIS would act on a petition with greater alacrity – but, we know from USCIS’ own data from the 2008 H-1B Benefit Fraud & Compliance Assessment report that many of the businesses that use the H-1B program to meet needs for highly skilled experts are smaller businesses, those with fewer than 25 employees, with revenues under $10 million, and operating for less than ten years – the emerging companies and start-ups that are the focus of the agency’s entrepreneurial initiatives.

Businesses don’t embark on the H-1B process lightly. Plans to bring on an H-1B usually start early in the year, and employers know quite well that the candidate won’t be able to start until October 1st, at the earliest. Projects are mothballed, customers are warned, and contracts are put on hold, waiting for the beginning of the new fiscal year and the arrival of the specialist so that folks can get back to business. For those employers lucky to have former students working on practical training, which expires on September 30th, seamless and uninterrupted employment is expected, or at least hoped for. If the candidate is overseas, arrival will be further delayed while a visa is obtained from a U.S. consulate.

All of these delays could be avoided if USCIS would efficiently process H-1B petitions. It’s not like there has been a change in the law that has caused the delays. They simply haven’t, don’t have a reason for the backlogs, and when they were asked late in August to speed up processing, they said they were trying, but they weren’t going to make any special efforts, and, if a business wants faster service, to pay up.

Exacting another twelve hundred dollars from a small business to get USCIS to do in fifteen more days what it hasn’t done for over four months sure doesn’t seem to be a way to promote startup businesses and spur job creation. USCIS needs to get with its own program and promptly adjudicate the pile of H-1B petitions that have been on the shelves for months.

The Trouble with Caps and Limits

Monday, June 11th was the last day US Citizenship and Immigration Service was accepting new H-1B cases subject to annual numerical caps.  For the first time in years, the H-1B quotas of 65,000 for professional workers , and 20,000 for professional workers with U.S. advanced degrees, dried up in less than one fiscal quarter.  This happened the same day that we learned that the Employment based 2nd category,  for advanced degree holders and foreign nationals of extraordinary ability, would retrogress in July for nationals of all countries. The “EB-2”  category had previously been available for all qualifying employment based immigrants except those born in India or the People’s Republic of China.  India and China are big “feeder” countries providing us with highly skilled technology workers, engineers and scientific researchers and are badly backlogged due to our quota system’s per country limits for immigrant visas.  But the July retrogression means that with respect to applicants from other countries, only those whose first application for employment-based permanent residence was filed before January 1, 2009 would be able to complete the permanent residence process and receive green cards.  Others will be stuck in a backlog.

Ironically,  the current U.S.  employment-based  immigration system was created under  the Immigration Act of 1990 (also known as “Immact 90”), with the intention of fixing the existing backlogged employment based immigrant quota system. The old system, in effect since 1965 and as amended in 1980, had six preference categories for immigration to the U.S.  These categories included four family-based categories and two employment based categories, the 3rd preference category for professionals and foreign nationals of exceptional ability in the arts or sciences and the 6th preference category for skilled and unskilled workers.    The annual combined quota for family and employment immigration was 270,000 with the 3rd and 6th preference categories being allocated only 10 percent each of the worldwide quota.  Immact 90 separated employment based immigration categories from the worldwide family based system and created an annual quota of 140,000 employment based visas.

Immact 90 also instituted, for the first time, a numerical cap for H-1B visas (known until that time as H-1 visas) which has been amended several times to its current status of 65,000 plus 20,000 for U.S. graduates of advanced degree programs.  Universities and certain affiliated organizations and non-profit research organizations are exempt from the H-1B cap.

Back in 1990, there was little concern about the new numerical caps on either the H-1B visa or the employment based annual immigrant quota because the numbers appeared more than adequate at the time.  But as the economy grew and the information technology revolution sped forward, the needs of our economy for highly skilled foreign workers has outpaced these old limitations. We ignore this at our peril as a nation.

We have all seen the reports that have been issued within the past few years, indicating that highly skilled foreign talent has been crucial to our competitive edge in technology, research and in the development of emerging businesses.  According to studies done by the Kauffman Foundation, an unusually high number of founders of technology and engineering businesses in the U.S. are foreign born, and a very high percentage of those people came here originally to study.  The regions in the U.S. that have the largest immigrant populations also tend to have the greatest number of technology start-ups.

And just last week, The Partnership for a New American Economy –– a group of more than 450 Republican, Democratic, and Independent mayors and business leaders who support immigration reforms that will help create jobs for Americans – released a new study that shows that that 76 percent of patents from America’s top 10 patent-generating universities in 2011 had a foreign-born inventor. The study makes crystal clear the kind of tangible contributions foreign-born graduates make to the U.S. economy. Almost all of the patents by these foreign-born inventors were in science, technology, engineering and math (STEM), an area where the U.S. is projected to face a shortfall of 230,000 qualified advanced-degree workers by 2018.

That data about how high skilled immigration only makes us better and stronger is plain and clear, and every day we see more of it. But our immigration system is years behind what the data is telling us about who we are and what we need as a country.  The H-1B cap has turned out to be a barometer for our growing economy.  Unfortunately, it is an instrument that turns the flow off just when it indicates that employers need more skilled workers. The uncertainty of an employment based system that can create backlogs of ten years or more encourages foreign talent educated in U.S. universities as well as abroad to choose to set down roots in other countries with friendlier immigration systems.

We have been a most fortunate nation, that for so long has been able to attract and draw on a diaspora of international talent to propel ourselves forward, technologically and economically. We cannot afford to take that for granted. We must do something about our caps and limits that will allow us to retain talent and continue to prosper.

Written by: Deborah Notkin and Eleanor Pelta

Senator Grassley: Out of Touch with Economic Realities

Against a backdrop of recent press reports detailing the beating that the U.S. is taking in the international battle for brains and foreign investment, and calling for improvements to our laws governing high skilled immigration, along comes another letter of concern from Senator Grassley, this time addressed to the Government Accounting Office, asking for yet another investigation   What is the Senator concerned about this time?  Vague and unspecified “reports” of abuses of Optional Practical Training, the program under which foreign students graduating from U.S. colleges and universities may work in the U.S. in their fields for a period during or after completion of their degree programs. The Senator would have perfect comic timing, if his efforts weren’t dead serious.  To those of us not inclined to view the health of the U.S. economy as a laughing matter, Senator Grassley’s most recent anti-business immigration salvo shows how dangerously out of step he is with respect to the current thinking about the connection between the economy and high skilled and business immigration.

In the past year, there have been at least nine different legislative proposals that aim to improve our country’s attractiveness to the highly educated, especially in fields in which there are documented skill shortages among the U.S. born population, such as the hard sciences and the quantitative fields, and to enable those with innovative business ideas to stay and nurture those ideas to fruition here. Why has there been such a high level of legislative activity with respect to this aspect of our immigration laws?  It is a recognition by legislators that the part of our immigration laws that deals with the needs of U.S. employers and the ability of the highly skilled to remain in the U.S. has remained virtually untouched for over 20 years, and is sorely in need of a massive update to bring it into the 21st century. Moreover, it is a response to the wealth of research published in recent years with respect to the contribution of foreign nationals to our economic well-being, clearly showing that we stop drawing on the diaspora of international talent at our peril as a nation.

A recent study by the Ewing Marion Kauffman Foundation indicated that over half of Silicon Valley start-ups founded from 1995 to 2005 had one or more immigrants as key founder. Moreover, more than half of the foreign-born founders of U.S. technology and engineering businesses initially came to the U.S. to study. Seventy-five percent of the highest degrees among immigrant entrepreneurs were in STEM fields. Recent press reports have also pointed to the fact that our competitor countries see our outdated immigration system as a major weakness and are targeting it directly. Canada recently announced changes in its business immigration system designed to make it easier for entrepreneurs to immigrate, and in particular, to run small businesses in Canada. And perhaps the clearest symbol of the level of frustration with our unworkable system is the Blueseed project—the proposed “pirate entrepreneur” ship that will be docked off the coast of Silicon Valley and will provide development space for those who cannot obtain visas to launch a business in the U.S.—including many talented and creative graduates of U.S. business schools and other graduate programs.

Much of the animosity that comes out of Senator Grassley’s office toward high skilled immigration programs seems to be premised upon a perception that fraud and abuse lurk around every corner of those programs. One could certainly take issue with that, given the fact that according to USCIS’s own statistics, the incidence of fraud is relatively low. But the Senator’s most recent targeting of the OPT program—with no apparent factual basis whatsoever—really shows him to be out there on the fringe of the current national dialogue on how a smart immigration system can stimulate economic growth, particularly compared to his own colleagues in Congress. It lends credence to the conclusion that Mr. Grassley is simply out to wage a holy war on any and all improvements to our high skilled immigration system.

Now is the time for us to expand –not restrict–all possible opportunities to keep brainpower and dollars within our borders.



Immigration and Jobs: The Dangerous Zero Sum Game Fallacy

There is a simplistic but dangerous theory that forms the underpinning of many restrictive immigration initiatives. It is perhaps elegant in its simplicity, but it is dead wrong. Not only dead wrong, but highly dangerous to our economic well-being. The theory is, in essence, that every time we eliminate the opportunity for a foreign national to either come to or remain in the United States, we create an immediate job opportunity for an American, — in other words, immigration and American jobs are somehow elements in a “zero sum game.”  One does not have to be a statistician or labor economist to see the obvious flaws in such a theory. For politicians, however, it is a highly attractive battle cry, especially in our current high-unemployment environment. But politicians who try to sell this notion to the American public are not only insulting the intelligence of their constituents, they are embracing a rhetoric that can do long-term economic damage in a time when we can least afford that.

A perfect example of this is the recent Alabama state law, a “show me your papers” law that essentially made every single transaction between the state and its residents into an immigration checkpoint. Part of the rationale offered by Kris Kobach and others who devised and sponsored the legislation was that, to the extent that undocumented workers would be driven from the state, it would create economic opportunity for legal residents of Alabama. But that’s not what happened. Job growth figures from the director of economic forecasting at the University of Alabama did not support the conclusion that the legislation resulted in jobs for Alabama residents. More significantly, the University of Alabama’s Center for Business and Economic Interests released a study of the state immigration law last month and found that it will likely result in the loss of tens of millions in tax dollars and literally billions in lost production. The study found that between 40,000 and 80,000 workers who earned between $15,000 and $35,000 have left the state, thereby causing indirect job loss of between 70,000 and 140,000. How can this be? It occurs because, when wage earners leave the state, aggregate demand for goods and services decreases, thereby causing a loss of additional jobs. The study also found that, because of the law, Alabama’s GDP will take a major hit, in that the goods and services produced by the state will fall between $2.3 billion to $10.8 billion and the state will lose between $56 million to $264 million in state income and sales tax collections. The full study can be found at Alabama lawmakers –many of whom supported the legislation–now want to take a second look at the legislation because of its “unintended consequences,” not the least of which is that the Alabama law gives other states a new way to compete with Alabama to attract business.

Funny, isn’t it, how these laws that are simply intended to create jobs for Americans can have all of these “unintended consequences.” Whether Kobach and Co. intended these consequences or not is beside the point–they simply don’t care about the economic harm because their main goal is to create a police state environment in which it is impossible for undocumented workers–and those who might be presumed to be undocumented–to work, live and thrive. They scorch the earth in one state and move onto another state that might be available and willing to be an incubator for their ideas.

Now comes Senator Grassley with a letter today to President Obama charging that the President does not understand the difficulties faced by unemployed highly skilled Americans. Senator Grassley’s letter, which calls for restrictions to the H-1B program as a solution, unfortunately follows a logic that is strikingly similar to the faulty rationale for the Alabama law. His letter states “Thousands of qualified Americans remain out of work while companies are incentivized to import foreign workers.”  The letter advances the notion that highly-skilled workers are simply fungible, both in terms of geography and in terms of skill-set, and, as a corollary, that employers use the H-1B program as a low cost alternative to the hiring of U.S. workforce.

The facts about H-1B’s tell a different story. First, for for-profit businesses there is an annual cap on new H-1B hires of 85,000. This number, along with the number of H-1B workers who are here on extensions, is a very small percentage of the highly-skilled workforce in the U.S. and an even smaller percentage of the U.S. workforce as a whole. But even if one believes–as I do–that in this economy even one domestic hire makes a difference–there are very important reasons for supporting the continued existence of the H-1B program in its current form. It is a proven job creator, not a job eliminator, for American workers.

A 2008 study by the National Foundation for American Policy on H-1B and job creation showed a direct and statistically significant correlation between the hiring of an H-1B worker and the creation of new job opportunities for American workers. The study showed that that for technology companies in the S&P 500, for every H-1B worker requested, roughly 5 additional jobs were created. In companies with fewer than 5,000 employees, 7 new jobs were created for every H-1B hired. Moreover, the study indicated that if–as the Grassley letter intimates–companies hire H-1B workers because they are cheaper then H-1B filings by companies that had hit hard times should have risen, but in fact, they fell.

The plain truth is that it is not cheaper for a company to hire and continue to employ an H-1B worker, and the H-1B program, as it is currently structured, certainly does not “incentivize” U.S. companies to hire H-1B workers. The H-1B rules entail a filing with the Department of Labor in which an H-1B petitioner promises to pay the worker the prevailing wage for the job in the area of intended employment. There is no such rule in place with respect to the hiring of US workers. Moreover, there are other costs and fees associated with hiring an H-1B worker that are not associated with the hiring of an American worker, including legal fees and government filing fees. A business organization operating on an economically rational model would not hire an H-1B worker where it could locate a U.S. worker who could perform the same job duties. While Senator Grassley’s efforts to restrict the H-1B program are also aimed at eliminating fraud and abuse–a worthy goal–the incidence of actual fraud in the H-1B program, as determined by USCIS’s Fraud Detection and National Security H-1B Site Visit Program, is extremely low. The high cost of hiring an H-1B in comparison with the hiring of a U.S. worker, combined with the low incidence of fraud, would indicate that in general, companies are using the H-1B both compliantly and strategically.

As is the case with the Alabama law, adding restrictions and artificial limits to the H-1B program could have serious “unintended consequences.” Not only would we lose the indirect job growth that has been shown to occur, at least in the technology sector, when H-1B’s are hired, but we would lose the important professional and technological cross-pollination that may be the basis of this indirect growth –the learning and sharing of skills and ideas that occur when professionals of varying cultural and educational backgrounds come together to solve a problem. For the benefit of our economy, I would much prefer that these experiences happen here, on U.S. soil, at U.S. employers, than abroad. Moreover, large companies that are deterred by H-1B restrictions from hiring key foreign talent may opt to locate projects abroad, thus resulting in potential indirect job loss in the U.S. According to his letter, Grassley would also limit the expansion of work authorization for foreign students who are educated here and have degrees in science, technology, engineering and math. Again, what would be the unintended consequences of such a move? We would be sending U.S.-educated individuals with highly sought-after skills back to their home countries to help those countries outpace us in the global economy. Our competitors abroad—countries looking for investors and innovators– must be rubbing their hands with glee and cheering Grassley on.

Unemployment is a highly complicated problem that will require a complex solution, or set of solutions. When politicians advance the simplistic argument that immigration restrictions equal U.S. job growth, it is not only dangerous as an inherently flawed theory, it is also a highly damaging distraction from the crucial work of finding smart, nuanced and well-thought out long-term solutions to our unemployment problems. The American people deserve these viable solutions, not simplistic political rhetoric.

Pelta’s Top Five (plus) Suggestions for USCIS

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.

Senator Grassley: The Puppetmaster?

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.

Message to USCIS: Support Your Local (and National) Postal Service

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.

It’s Time to “Work Side-by-Side with America’s Businesses”

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

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

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

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

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

“The Righteous Among Nations”

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

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

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

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

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