LETTING THE MARKETS WORK, OR HOW THE GOVERNMENT WAGES WAR AGAINST EMPLOYERS THROUGH A POLICY OF "RFE, DENIAL, AND NO VISA FOR YOU"

Business owners of all political persuasions share a number of fairly basic beliefs.  One of those beliefs is that excessive government interference in markets for goods, capital and labor, is bad policy and bad practice.    At the same time, the general public agrees that government should intervene where there is an incentive for, or the actual incidence of, fraud or unfair manipulation of those markets.  We see that balance played out in the field of securities, where markets are allowed to operate under flexible conditions, subject to government regulations and federal prosecutions aimed at preventing fraud in the marketplace, or punishing individuals and companies who engage in it and harm the public.  We also see this in the international realm.  For example, the US regularly criticizes China for its direct support of various industries, which results in below market costs for production of goods that are then “dumped” in US and world markets, which in turn lets those Chinese producers gather more market share unfairly.   The ultimate result – harm to our economy and to US workers, confirming that unwise government interference in market forces can have terribly harmful effects.

It is more than a little interesting to see how support for free and flexible market  forces disappears when we examine the field of immigration.  Instead of flexible markets and smart government regulation, we have seen a war of widespread government interference waged against employers who are seeking to hire workers in response to market demands.

With respect to highly skilled workers, the last several years has seen higher and higher rates of government interference.   In these immigration cases, government interference is reflected in Requests for Additional Evidence (“RFE”)and in outright denials.   The evidence of such interference is staggering.   

International employers with  US facilities can transfer workers with specialized knowledge to their US locations under the L-1B category if the foreign worker has a highly complex skill set and has worked for a foreign affiliate of the US location for at least one year.   According to a 2012 Report by the National Foundation for American Policy, in fiscal year 2011, USCIS issued RFE’s in 63% of all L-1B cases; and it denied 27% of them; total governmental interference: 90% of all L-1B cases in 2011. 

For L-1A workers (Executives and Managers), the RFE rate was equally astounding:  in 2004, USCIS issued RFE’s in 4% of all L-1A cases; in 2007 it did so in 24% of the cases; in 2011 it did so in 51% of all such L-1A cases.   USCIS also denied some 14% of L-1A cases in 2011;  total governmental interference: 65% of all in L-1A cases in 2011.

L-1A and L-1B jobs are not ones that can be done easily by US workers; they require significant training and experience overseas.  Yet USCIS hammered the petitioners in these cases.

The H-1B category allows US employers to sponsor workers to fill year round jobs that require a college degree candidate.   Only 85,000 such visas are available each year, a tiny fraction of the US workforce.  Each year these visas are gone long before the end of the fiscal year; in 2011 all 85,000 visa numbers had been used by November 22, 2011, barely 45 days into the fiscal year.   RFE’s in H-1B cases rose from 4% in 2004, to 18% in 2007, to 35% in 2009.   It remains high – 2011 saw RFE’s in 26% of those cases.

Denials in H-1B cases also have been high:  denials rose from 11% in 2007 to 29% in 2009, and have remained near 20% since then (21% in 2010 and 17% in 2011).  Total governmental interference:  43% in fiscal year 2011 for H-1B cases.

The most shocking area of governmental interference exists for employers who want to hire workers to perform manual labor in year round jobs, or really any kind of labor that does not require a degree or international experience.   For these jobs, the government says that the employer cannot sponsor the worker for a temporary visa.   The employer only can sponsor the worker for a green card, a process that currently takes about 7 years.  No one would put up with that kind of delay if the government said you had to wait for 7 years to get a crown for a split tooth, or an operation for infertility, or any other serious procedure.   No one would put up with a 7 year delay if it prevented them from buying a car to replace the only car you owned when that one had been wrecked.

That kind of government market interference was widespread in the Soviet Union, which gave us a shining example of the worst possible kind of governmental intrusion in everyday life.

Yet Congress is intimidated into complete inaction and incompetence by a hardcore group of anti-immigration zealots who want to see more and more government regulation and interference in the immigration field.  And their champions are well represented in Congress:  Senator Chuck Grassley of Iowa, a vocal supporter of free trade agreements (that clearly  will help his constituents) is equally vocal in his calls to add additional restrictions on the H-1B program, claiming that “thousands of qualified Americans remain out of work while companies are incentivized to import foreign workers.”   Senator Grassley also claims that employers turn to the H-1B system as a cheap alternative to hiring US workers.   That sound bite, easy as it is to throw about, is contrary to a detailed 2008 study by the National Foundation for American Policy, a study that confirmed that the H-1B program is a job creator.  And as any employer who has filed an H-1B case knows, it is anything but cheap, and certainly not filled with incentives.

Similarly restrictive policies are now being seen in state legislation, but with serious and clearly unintended consequences.   The recent experience in Alabama provides us with a perfect example of what happens when a state changes its laws to support dysfunctional federal immigration law and policy.   After passing that law, Alabama saw a mass exodus of undocumented and documented residents.  After the law was enacted, the Alabama Center Business and Economic Interests conducted a study about the effects of that new law.   The study confirms that the law has resulted in the loss of between 40,000 and 80,000 workers who earned between $15,000 and $35,000 per year, and an indirect loss of between 70,000 and 140,000 jobs in the state.   Not too good for a law that was billed as a sure-fire way for Alabama to put the unemployed back to work.  

It is likely that the members of the Alabama legislature who rushed this law into place did not understand the basic problem with US immigration law.  They likely were voting for the law while asking, rhetorically, “Why don’t they (the undocumented) just get in line like everyone else?”  The reason is that there is no line; there no way for their employers to sponsor them for temporary visas if the jobs involve manual labor, the job needs to be filled a year round, and the worker does not need a degree to do the job.  (There was a temporary visa category for such workers from 1942 to 1962, but not since then.)   Now supporters in the Alabama legislature have called for a re-evaluation of the law; heeding too late the warnings of those who explained that the law would not solve the problem.  As Alabama has seen, the law has done exactly what supporters of common sense reform have predicted for years:  if we lose those workers, our economy will crash.   Alabama has demonstrated on a state wide basis exactly what will happen nationally if we continue to adhere to an enforcement only policy. 

And all this has happened in the guise of helping US workers and businesses, when in reality, the vehicle that Alabama used was a more intrusive system of governmental interference in the labor markets. 

Whether the discussion involves highly skilled H-1B and L-1 workers, or workers in industries that require manual, non-degree labor on a year round basis, the moral of this story is clear:  government should stay out of the labor market control business as much as possible, and concentrate on ferreting out fraud where it exists.   Simply put, the US government and state governments must stop waging this war of increased interference by “RFE, Denial and No Visa for You”.

New Court of Appeals Decision decides that Padilla is not retroactive

Yesterday the North Carolina Court of Appeals decided State v. Alshaif (No. COA11-817, Feb. 21, 2012). 

In that case, the issue presented was whether, under Padilla v. Kentucky, ___  U.S. _ , 176 L.Ed. 2d 284 (March 31, 2010), a defendant’s guilty plea could be vacated, where the defense attorney failed to advise the defendant that his plea to a  state charge of assault with a deadly weapon almost certainly would result in his being deported.   Padilla was decided in 2010.  In that case, the US Supreme Court decided in a 7-2 vote, that the attorney’s failure to advise the defendant of serious and highly likely immigration consequences of the plea, was grounds to vacate the conviction.

In Alshaif the NC Court of Appeals decided that the defendant in that case could not use Padilla, which was a 2010 case, to vacate a 2007 plea and conviction.  The Court held that the “rule of retroactivity” did not apply because the holding in Padilla did not meet the definition of a “watershed rule of criminal procedure, implicating the fundamental fairness and accuracy of the criminal proceeding.” 

The Court concluded that Padilla did not reflect a “watershed” rule because its use was not necessary to prevent “an impermissibly large risk of an inaccurate conviction” and the rule did not alter general understanding of the bedrock procedural elements essential to the fairness of the proceeding.  

Without going into great detail, suffice it to say that to the defendant, an uninformed plea results in a grossly unfair and inaccurate conviction.  Without full knowledge of the consequences of his plea, the defendant is placed in the same position that a patient would be placed in this situation:   assume the patient has a fatal disease, and there are two types of medicines that could be used.  Both are effective, but one has immensely serious side effects that can leave him crippled or, as we say in the law, suffering from collateral consequences.   The doctor could learn of these consequences, but argues that the only important issue is whether or not the patient is going to be cured of the primary disease.  

It is absurd to argue that an injured patient (due to the failure to warn) has no claim against the doctor for failing to adequately warn him; by the same token, the defendant in Alshaif should have the right to argue that his lawyer made an error so grave that it invalidates his decision to plead guilty.   The rule that denies retroactivity does so on the general ground that at a certain (arbitrary) point, Courts are just going to say that shoddy legal advice is acceptable.  Where the result of such advice is deportation from the US, there is no justification for such a decision.

This issue will be litigated further, but the NC Supreme Court does not have to hear any appeal from the Ct of Appeals’ decision, although it may accept certiorari if it chooses to do so.  We hope it will; the lower court’s decision is indefensible. 

Good afternoon.  This will be our initial blog on immigration issues that affect many if not most of our clients, whether they are clients with business based cases, family based cases, applications for waivers of inadmissibility at USCIS or at the US Embassy, or clients in removal proceedings.  

We invite everyone to read and respond to our comments, and trust that our entries will be useful and thought provoking to you.

Gerry Chapman

Recently we have seen two developments in the law that may be of interest to you.

1.       New Procedures for filing Unlawful Presence Waiver Applications

First, in January the Obama Administration announced its intent to revise the procedures for processing unlawful presence waiver applications.   The Administration has projected a late 2012 target date for the approval and implementation of these new procedures.

Many people believe, incorrectly, that the change will apply to anyone who needs to leave the US in order to process for any kind of visa.   This is not correct.   Based on what the Administration has said, the new procedures will apply only where all of the below factors exist:

1.       The applicant must be processing for a family-based green card.

2.       The applicant must be the spouse or minor child (under 21) of a US citizen.

3.       The applicant still must meet the long-standing standards for obtaining a waiver:  proof of extreme hardship to the qualifying relative (see #2 above).

4.       The applicant must have one and only one ground of inadmissibility:  unlawful presence in the US.

As a result, a person who is seeking an employment based green card cannot use the new procedures.  Nor can a person who lacks a qualifying relative, or who has any additional grounds of inadmissibility.  Qualifying relatives include parents or spouses.

Dangers in filing under the new procedures

What happens if USCIS denies the waiver application?   The new proposal did not answer this question, and based on current USCIS practice, it is quite possible, if not likely, that USCIS will institute removal proceedings against a person when USCIS denies such a waiver application.   As a result, any person who files with USCIS for such a waiver must understand that there is significant risk that, if USCIS denies the application, USCIS will institute removal proceedings against this person.   USCIS regularly does this when it denies an Application for Adjustment of Status; there is no reason to believe that USCIS would act differently in a case where it denies a waiver application.

Decisions are discretionary

It also is important to remember that USCIS can (and will) issue decisions that are inconsistent with the decisions in other, similar cases.   In effect, USCIS adjudicators will have a different take on different cases, and there is no way to predict what will happen in a given case.  In addition,  the decision that USCIS issues is a discretionary one, and even though we or you or both of us think that the waiver application is a strong one and that it should be approved, the USCIS adjudicator may disagree.   An appeal can be taken or the applicant can file again, but due to the intensely fact specific nature of these cases, the first decision is likely to stand.

Collecting your evidence

If a person believes that his or her facts will support a strong waiver case and wishes to begin preparing the application and supporting materials, now is the time to do so.   Evidence of hardship to the qualifying relative can include financial hardship, medical hardship, career hardship, inter-family hardship and the like.   Before beginning to collect this evidence, an applicant should meet with an attorney who has experience with such waiver applications.    Even where you have doubts about the strength of your case, the best step many times is to collect the evidence that you have available to you; once you review that evidence, you will have a much better idea of whether the case should be filed or delayed.

2.       Recent 7^th Circuit Appeals Court Decision on the meaning of “harboring” an illegal alien

On January 31, 2012, the 7^th Circuit Court of Appeals overturned a conviction of a woman who had been prosecuted for harboring an undocumented man (her boyfriend).   He had lived with her in an open and unshielded way for at least a year before he was arrested on drug trafficking charges.   The boyfriend was convicted of the drug trafficking offense, and, the Court suggested, the government probably thought the woman was involved in that activity but could not prove it.  As a result, the government indicted her under the harboring statute.  

The Court reviewed a large number of cases, none of which gave consistent guidance on the meaning of the term “harboring”, but eventually the Court concluded that merely living with another person is not harboring.  In reaching its decision, the Court contrasted one case where a harboring conviction was upheld: in that case, a Chinese restaurant owner had knowingly employed many undocumented workers; it also had provided housing to those workers, with the apparent intent to keep their presence unknown to other people.   The Court placed significant emphasis on the fact that the restaurant owner did something other than just let these people live in housing that the employer sponsored; it also provided work for them, and made what could be viewed as a concerted effort to keep the public from knowing where they were outside of normal work hours. 

The Court’s reasoning may not survive this case; one of the three judges dissented, and the government can appeal to the US Supreme Court.   In addition, many state immigration laws now include similar language about harboring, so this could be  a very important case for both the Department of Homeland Security and many states as well.   Only time will tell whether the US Supreme Court will enter the fray on this issue; in the meantime, simply living with an undocumented boyfriend or girlfriend appears to be behavior that is protected under the law.

If you have any questions about other arrangements that may be in violation of the law, you should speak with a qualified immigration attorney to review your rights and obligations.