Immigration Insider

Impatience with Priority Date Delays

If there is a single issue (besides the daily barrage of EB-5 inquiries) about which folks have been emailing me the past few weeks , it is definitely the Priority Date situation.  F-1 students, in particular, have evolved from the standard concerns about the transition from OPT to H-1B status (although, in this economy, even THAT is proving difficult) to long-range "when on earth will I ever get my green card?"

With Obama's promised Comprehensive Immigration Reform (CIR) an increasingly distant possibility, transition from temporary status in the U.S. - as a student OR as a professional worker -- to U.S. permanent residency via employment is increasingly nebulous.

What really bugs me, however, is the soothing chant I keep hearing from others in my profession:

"RELAX, you can stay in H-1B status as long as necessary provided you start your PERM process prior to your fifth year in that status." 

That is of little comfort, and TOTALLY unrealistic when seen from the eyes of the prospective immigrant student/professional. IMHO, we can do better than create a situation where 100% of a person's destiny is in the hands of an employer who wields absolute immigration control until the end of the permanent residency process.

A colleague in the EB-5 business describes the whole H-1B and PERM process as "indentured servitude", and we've bantered that about quite a bit.  Seems to me that what I originally perceived as a bit of an exaggeration on his part is precisely what is genuinely taking root in the current economy, still slogging through with a very flawed employment-based immigration process. 

At a time when American competitiveness is most challenged,  it is tragic to put these desperately needed professionals through a process which is the metaphorical opposite of "rolling out the welcome mat".

Part 3.5- Last 2 minutes of F-1 to Perm Residency Blog

PART 3 -Video: U.S. Permanent Residency for F-1 Students

Sigh...I did it AGAIN.  The third installment went over by a minute so look for 3.5, which is a quick two minutes.

I have to get a stopwatch.  I talk SOOOOOO much.

Have a great weekend and remember: in addition to the useful information I provide in these video blogs for F-1 students looking for a solution to their permanent residency, these videos are also invaluable to insomniacs...(-;  J

Video: U.S. Permanent Residency for F-1 Students- PART 2

This second part of the blog discusses the options available to graduating F-1 students with entrepreneurial ambitions.

Video: U.S. Permanent Residency for F-1 Students- PART 1

This first of three discusses the "traditional" paths to a green card for F-1 students

Buncha Stuff....some good, some scary...

...GOOD GRIEF what have I gotten myself into?  Here I am thinking this blog will be a nice little writing outlet but a hyper-caffeinated Chertoff and minions have me playing Headline News...here's the latest from that wacky cast of characters in your national capitol...

-USCIS announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status.  I know a lot of good folks who will smile at that one. (-:

-The Washington Times yesterday FINALLY relayed the news of the federal contractor mandate with E-Verify days after your faithful immigration bloodhound reported it.  Am I cool or what?  I outscooped a Washington newspaper on something that happened in Washington...while sitting in Gainesville. Gotta love the Internet.

-This is actually from March guys but I don't think I read it before and if I did I didn't report it:  Chertoff -- who has in my book evolved into one of those people known by a single name (e.g., Nosferatu, Godzilla, Prince, Nostradamus, etc.) -- let it be known that fines for violating federal immigration laws would increase by "nearly 25%".  That means that the maximum civil penalty is going from $11,000 to $16,000 for multiple violations.

Suggestion:  CALL ME.  We can get your small-midsize company audit ready for less than the five grand increase in the penalty!

HSA's Chertoff: The Heat and Raids will Continue

Yesterday was a busy immigration day in Washington: not only did the President finally invoke the long-promised mandate of requiring E-Verify from all federal contractors, but two of his execs hunkered down for a rather verbose press conference dubbed the "State of Immigration Address".  Homeland Security Secretary Chertoff (a/k/a Bush's lead immigration enforcer) and Commerce Secretary Gutierrez (who appeared more because of his surname than because of his contributions to the issue at hand) waxed poetic on a bunch of stuff, so I'm culling the "Employer Relevant" nitty gritty for you from the transcript, write me if you have questions...

On 2-year EADs- Employment Authorization Documents will be issued with a 2 year validity period beginning later this month, doubling the current limit of one year and making stressed out adjustees a lot less stressed.  Good job, Mr. Chertoff, given that the promised processing timeframes are rarely realized and a lot of folks have to sit out employment while waiting for the renewal of timely filed EAD extensions.

On State Legislation- Chertoff cited the state of Washington, which is currently issuing its own version of an approved, enhanced driver’s license that will be acceptable at the border. New York has announced that it has completed its business plan to begin producing those enhanced driver’s licenses. [Comment: I remember when the concept of federal sovereignty would have made this state involvement an outrage in D.C.; talk about a tacit admission of federal failure in immigration...!]

On E-Verify: Mr. Chertoff was positively giddy about the system, calling it "a tremendous success".  Unfortunately, his reasoning is a little loopy, and he seems to fail to grasp the connection between increased E-Verify usage and the fact that HSA has terrorized the nation with raids, insuring front page comments.  His words:

"The proof of the pudding is the marketplace itself. Every week on average, about a thousand new employers join this program. And I will tell you that at this point, I will estimate that is almost -- maybe actually more than ten percent of the new hires being hired in the United States are currently being run through this E-Verify system...The system works. Of those workers who are legal, 99.5 percent of them roughly are verified essentially instantaneously. And if those workers who have a mismatch -- legal workers who we estimate to be about a half a percent, they are able generally to resolve their issue within less than two days."

[NOTE: I respectfully disagree with Mr. Chertoff and so do all the organizations tracking the system, but it IS improving.  Unfortunately, these numbers still represent a small fraction of U.S. employers and E-Verify remains a complex and user-unfriendly application; that's precisely the reason behind the rush to implement full-spectrum compliance tools such as our own i9 Advantage]

On Raids, Enforcement, and Nailing the Big Guys:  If there was any hope that in its waning months the Bush Administration was going to lay off the raids and focus on improving employer education, Mr. Chertoff calmly and quickly dispensed with any such illusions:

"Finally, we are going to continue to keep the pressure up on employers and on illegal aliens by bringing significant cases. As you know recently we brought a case against a meat-processing operation in Iowa. Almost 300 immigrants, illegal immigrants pleaded guilty to using fraudulent documents to get their jobs in an Iowa meat-processing plant. That means they took the identities of innocent Americans and misused those identities. And at least in some instances, caused damage to the innocent American whose identity was stolen.

For those who say that we are only focusing on the illegal workers themselves, I point out that last year we had over 90 employers, or those in a supervisory chain who were convicted of crimes. We have had one CEO or President of a company sent to jail for 10 years. We have had recent conviction of a union official from the United Food and Commercial Workers union for his involvement with the activities at --.

We will continue to pursue employers. I know these cases take a little bit longer. There is a -- it is always more difficult to work up the chain. I can tell you as an old organized crime prosecutor and as an old drug prosecutor, you always start with the bottom ring first, then you work your way up to the top ring. But I guarantee we are continuing to work on making cases against that top ring and we will do so whenever the evidence supports bringing that kind of a case."[Emphasis supplied]

No punches pulled there, eh?  Here are some interesting excepts from the Q&A that followed:

Question: Secretary Chertoff, about the executive order on E-verify for federal contractors, do you have somewhat of a number of how many contractors that would involve and how many workers potentially?

Secretary Chertoff: I think we were potentially talking about hundreds of thousands, if not millions of workers. This is going to apply to contractors who are getting a new contract. Once this comes into effect they're going to be required to run all their employees through E-verify. Or if they have a contract and they're going to bring new employees onto the contract, they're going to have to do that.

Since I can' t predict what contracting is going to be like in the next two or three years I can't give you a precise number, but it's going to be at a minimum hundreds of thousands and I think maybe millions of people will be run through that program.

Question: Can you tell us whether this will cover subcontractors as well contractors?

Secretary Chertoff: I think now we're getting into exactly the area where we're going to wind up having to write the detailed regulation. There are all kinds of issues about what the contracting entity is, so we're going to get into all kinds of topics that will be fascinating for the lawyers. But I'm not going to try to give the legal analysis from up here.

The basic principle is this: if you're working for the federal government and you're being paid with federal taxes you ought to make sure that you're employees are obeying federal law when it comes to their employment authorization, and this executive order as implemented in detail by the regulation will do precisely that.

Question: One of -- for one, on the contractors, number one, the E-verify is voluntary? Is it voluntary for them or is it --

Secretary Chertoff: No.

Question: -- going to be mandatory for them?

Secretary Chertoff: No, for federal contractors who are getting new contracts who are putting new employees on existing contracts, it's going to be -- it's not going to be voluntary. They will have to do it as a condition of getting the contract.

Why GCs are Embracing Workforce Compliance

InsideCounsel magazine recently reported the results of an innovative study undertaken by another publication, Corporate Board Member magazine and FTI Consulting.  In the survey/study, over 1000 General Counsels and board directors were asked about the steps they are taking to mitigate risk within their organizations.  The eye-opening results suggest that the "ostrich head in the sand" approach to compliance is being rapidly replaced by a growing awareness of the risks of federal and state enforcement and the catastrophic damage enterprises face when they do not take broad scope compliance seriously.

The catchword du jour is "Enterprise Risk Management", or ERM, and it's actually the latest incarnation of something that's been around for over a decade.  In 2002, the Sarbanes-Oxley Act turbocharged the need for internal controls, and public companies scrambled to comply.  Here's what how Wikipedia defines ERM:

• "In business, Enterprise Risk Management (ERM) refers to the methods and processes used by organizations to manage risks (or seize opportunities) related to the achievement of their objectives. ERM provides a framework for risk management, which typically involves identifying particular events or circumstances relevant to the organization's objectives (risks and opportunities), assessing them in terms of likelihood and magnitude of impact, determining a response strategy, and monitoring progress. By identifying and proactively addressing risks and opportunities, business enterprises protect and create value for their stakeholders, including owners, employees, customers, regulators, and society overall.

But Sarbanes-Oxley didn't really address the more mundane aspects of corporate governance and risk reduction dealing with operational compliance issues.  Instead, the Bush Administration, through the aggressive effort at enforcing laws already on the books, has prompted this new push toward comprehensive, enterprise-wide risk reduction.  Consider the findings of the aforementioned survey:

• 75%= GCss who spent more time on compliance in 2006 than in 2005
• 48%= GCs who spent more time on ERM in 2006 than in previous years
• 35%= GCs who said that governance changes are the focus of their ERM Assessments
• 57%= GCs who would seek personal ERM advice from outside counsel [emphasis supplied]

That last statistic is the -- hang on, another French term coming, I'm on a roll today -- raison d'être for the cost of most risk management today: utilization of outside counsel for the implementation of operational methodologies designed for daily use.  The facts are:

-Most attorneys -- no mattar how high their hourly fee -- are about as qualified to design a company-wide regulatory compliance implementation scheme as they are to command the Space Shuttle.  It takes a combination of legal expertise, intimate understanding of client IT and administrative processes already in place, and process management wizards to establish a viable ERM suitable for daily use by all employees.

-The new ERM focus goes far beyond the technicalities of Sarbanes-Oxley to address everything from Social Security "no match" letters to I-9 compliance to EEO, ADA, and other federal, state, and sector-specific requirements which can cripple a company during one swift inspection or audit.

Which brings me to my point:  yes, it takes top tier legal expertise to define the requirments of ERM and distill them into a distinct series of client tasks.  But the difference between a visually impressive compliance plan which no one understands and therefore cannot implement and a practical, usable compliance plan embraced throughout the organization for its ease of use and simplicity is one thing: process integration. 

Email me to discuss what we can do establish a bullet-proof Workforce Compliance Manangement plan for your company.

Workforce Compliance: Outside Counsel vs. Outside SOLUTION

Counsel to Counsel magazine ran an interesting article in its October 2007 issue entitled "Choosing the Right Outside Counsel"  The article is a helpful analysis of what GCs should look for when reaching outside of their own corporate resources for the solution of a legal matter.

The article begins with an astute analysis of the increasing focus on corporate ethics and the need for transparency.  Among the suggestions the writer mentions to assist in house attorneys in finding outside counsel are networking forums, law firm networks, and, of course...peer review ratings.  (Double disclosure before I continue:  1- Martindale, the benchmark for attorney peer rating co-publishes the magazine along with InsideCounsel; 2- My Martindale A/V rating is a badge I've worn proudly for a decade and half and despite where I'm going today in this article, I still believe Martindale Hubbell to be the single best identifier of excellence in attorneys.)

The article, in and of itself, is great; the underlying premise -- that GCs must go to "outside counsel" for legal solutioning, is what is flawed.  Agreed: the vast majority of corporations are not quite at an aggressive "think outside the box" stage of legal evolution.  Still, the notion that outside law firms are the ONLY option is terribly mistaken.  A new generation of solutions is here for large corporations, and some of the mightiest have been blazing the path toward outside legal solutioning.

Consider James Buda, vice president and general counsel for Caterpillar.  Five years ago, at the 2002 Law Vegas, Mr. Buda met the attorneys of 10 law firms and told them in no undercertain terms that the party was over and the rules were changing.  When Mr. Buda headed Cat's litigation department in the 90's, the company relied on over 400 outside law firms for litigation; he trimmed that down to 20. And these 10 in Vegas were the half which remained after he became GC in January 2002.

You can read the full article here (in fact it is from Corporate Counsel magazine, Inside Counsel's predecessor) but the bottom line is that Mr. Buda totally reinvented Caterpillar's litigation solution to save the company a great deal of money while consolidating control and making the firms accountable for performance via a grading system. 

GCs like Mr. Buda are few and far between and bucking the trend of historical outside firm outsourcing is no small feat.  But in areas LIKE litigation support, intellectual property, contract management and my own area of immigration and labor law compliance, smarter alternatives continue to evolve for folks who, like Mr. Buda, want a better SOLUTION, not just another firm letterhead.

Compliance needs to be integral.  Talk to me and let me show how our solutions can affordably and seamlessly infuse bulletproof workforce compliance into your company.  Think outside the box and your company too can walk the way of the Buda.

Metagaming, Economics, and Global HR Compliance

Today I am going to talk about the LEAST talked about 2007 Nobel Prize, the one in Economics, awarded to three U.S.-based economists - game theory pioneer Leo Hurwicz, Eric Maskin and Roger Myerson. After half a century of work in a little-known but massively cool area of game theory, it’s about time.

Before I get into explaining their area – known as mechanism design theory (MDT) – I must explain that as a person who barely squeaked by with a “B” in Dave Denslow’s Economics class some 30 years ago at the University of Florida, I am hardly in a position to analyze, much less pontificate, over a heady topic such as this. Still, it is the Blessing of the Blog that its author can spout forth in both wisdom and ignorance, and the reader can read or roll his/her eyes and move on. Motivated by the early watchers of the night sky who were able to connect the dots and assign meaning and function to what appeared to be chaos, suffer my ramblings as I cobble together my theory on how MDT can transform your business. Perhaps I can shed a ray of light or two on the gloomy night sky of global workforce compliance in the process.

A recent economist described MDT as exploring “the gap in knowledge between buyers and sellers, and the costs and consequences for the efficient operation of a market.” Wikipedia describes it this way:

“Mechanism design is the art and science of designing rules of a game to achieve a specific outcome”

It is a form of “Metagaming”, which Wikipedia describes as:

“...a broad term usually used to define any strategy, action or method used in a game which transcends a prescribed ruleset, uses external factors to affect the game, or goes beyond the supposed limits or environment set by the game.”

Getting creative within a hornet’s nest of federal and state HR bureaucracy presents a number of challenges; this is precisely the story behind the success of I-9 Advantage and our evolving suite of workforce compliance services and products..

Here’s a beautiful example of metagaming at its core, also from Wikipedia:

“There is a special set of moves in chess which allows a player to win in four moves. Competitor A has been watching Competitor B play chess, and the past five games in a row Competitor B has attempted to use this four-move win. When Competitor A sits down to play against Competitor B, Competitor A will be metagaming if he/she plays in a way that will easily thwart the four-move checkmate before Competitor B makes it obvious that this is what he/she is doing.”

That, dear reader, is why I get so stoked about what we are doing. In a world where government regulations continue to hammer industrial clients with potentially collossal fines and sanctions, I-9 Advantage is thinking several moves ahead and guiding our clients through these murky times.  I-9 Advantage has quietly become the leading provider of I-9 and workforce compliance solutions because we have, quite simply, shattered the box.

Rooted in Total Quality Management, infused with Design for Six Sigma, and encrusted with the desire to shake up the legal status quo and give U.S. and global employers a smarter solution, the attorneys and experts at I-9 Advantage are all driven by a common vision of excellence.  It is our curiousity, our willingness to take things apart, analyze them, and reinvent them, that has led to the industry revolution we have triggered.  As we disrupt, those disrupted are grumbling, but that’s part of the process. 

Just like the guy whose four-move checkmate no longer works.   Talk to me if you need to no more about what we can do for your corporate peace of mind.