Immigration Insider

CIS? NIMBA…

As I sat at the opening session of the American Immigration Lawyers Association (AILA) National Convention on Thursday morning, I felt a rekindling of the fire I felt when I began immigration practice.  David Leopold, AILA’s newly-installed president, spoke eloquently about our responsibilities as immigration attorneys, about the many masks behind which racism hides, and about our history as a nation of immigrants. 

I don’t know Mr. Leopold personally, but after that presentation of his, it sure feels like I do.  The son of Holocaust survivors and as passionate an advocate as I’ve seen among our ranks, it was quite apparent to me that the fire this man has in his belly is exactly what we – AILA as well as the United States of America – need to turn around the catastrophic injustices manifested by our current hodge-podge of disjointed immigration laws and regulations.

Despite my nearly 20 years as an AILA member,  I have often taken the organization to task for what I perceive to be, at times, casting an agenda net which is as implausible as it is broad.  It is difficult to develop a constituency among the electorate or within Congress when every single immigration restriction brings forth dramatic cries of “FOUL!” by AILA.  Unfortunately, those of us who practice investment-based and employment-based immigration have different issues, concerns, and perspectives than the majority of our AILA brethren practicing in the areas of family immigration, deportation defense, asylum, and the like.  What is good for the goose is not always good for the gander, and it is always troubling to see AILA take an uber-liberal position which articulates an “injustice” where one does not, in fact, exist.

The fact is that immigration laws, like all laws, are meant to be enforced; barring underlying circumstances which create a significant injustice, deporting someone who has been subject to deportation for years is neither outrageous nor unjust.  It is simply enforcement of the law.  For too long AILA and other immigration advocates have tended to thrash around like a barely-grazed soccer player when confronted with enforcement issues, demanding Congressional reform when everyone knows it will not happen and it makes credibility that much harder for those of us who advocate for those who actually do follow the letter of the law.  My arbitrarily-denied H-1B professional is, in reality, the victim of far more injustice than the guy who overstayed his visa waiver and is finally nabbed five years after a removal hearing he chose not to attend.  But while the latter gets the media attention, the former is accepted as just part and parcel of a dysfunctional legal system.

This problem of these “two AILAs” – the liberal, defense-focused AILA and the pragmatic AILA advocating for sensible business immigration reform -- has existed for years, and it invariably weakens AILA’s effective advocacy on both fronts.  I am hopeful that under Mr. Leopold’s leadership, our institutional agenda can finally be reconciled and fine-tuned so that Congress and the American people are able to understand and separate the issues.   Until we are able to do so, we are simply the Democrats to FAIR’s Republicans, entrenched in a public and congressional perception which is simply inaccurate. 

As Mr. Leopold stated in his installation speech (and as I have stated in these pages before), there is nothing surprising about Arizona’s incredibly flawed response to the problem it faces with illegal migrants.  The USG is responsible for border enforcement but despite the dramatic increase in “boots on the ground” and technologies, the Mexican cartel wars continue to cross into the U.S.  Arizona’s dangerous encroachment on fundamental constitutional protections is, in the eyes of a state saddled with the financial burden imposed by both the criminal and social costs resulting in the presence of an unchecked illegal migrant population, a rational response to the consistent failure of the federal government to control the border. And today as yesterday, the amount of money Western states spend to educate children who are either undocumented aliens or the U.S. citizen children of undocumented aliens is still massive and not subsidized by the USG…no wonder these laws are passing.

But until there is COMPREHENSIVE immigration reform – reform which addresses not only the enforcement angle but which creates a sensible system of legal migration consistent with our fundamental American values – the only thing which will “control the border” is another Berlin Wall.  And that’s not what we are about.

So what are the components of this “sensible system”?  I believe they are:

• The establishment of an interim lawful status for the millions of illegal workers who have histories of reliable U.S. employment and clean criminal records which permits them to establish residency through a structured series of steps including mandatory community service, mandatory English-language education (with reasonable limitations for the elderly, as it is with naturalization filings), and, finally, a transition to lawful status which incorporates features of the U.S. naturalization process.   I know that my insistence on English-language education is politically incorrect, but that’s how my family viewed immigration to America: if you are lucky enough to live here, you have a responsibility to learn the language, no excuses.   I think that if a person who has violated U.S. immigration law for years is not willing to learn English – the one solitary social bond available to 100% of Americans – then they can head back home.  Sorry.
• The passing of a single law which mandates that UNDER NO CIRCUMSTANCES will any federal agency use bureaucracy, regulatory ambiguity, or – that most undemocratic of weapon of them all, non-appealable consular discretion – in a way which results in fundamental injustice to a visa applicant, their employer, or their U.S. resident or citizen family.    The need for an empowered, funded, and truly independent arbiter – not a “liaison” or “ombudsman” which is part and parcel of the bureaucracy itself – is crystal clear.  For two plus decades I have seen identical petitions handled in entirely different ways by USCIS, first tour visa officers who don’t know the difference between 214(b) and 221(g), and an institutionalized lack of accountability and human sympathy within the federal agencies responsible for the implementation of immigration laws.  It is inexcusable.  While you cannot legislate morality, you CAN legislate accountability, and it is time we do so within our immigration process.
• The total deconstruction of the employment based visa categories, starting with the elimination of an H-1B process that has gone from a reasonable administrative process to a non-legislated tax on U.S. employers which happen to be in desperate need for technology, health-care, and science professionals who simply are not available in the U.S.  Tell me this: what rational U.S. employer would spend $2000+ on H-1B filing fees if they could simply hire an American worker to fill the job??  We need a straightforward temporary worker program that allows foreign professional, agricultural, and seasonal workers to be a viable resource for U.S. employers seeking to compete in a global marketplace, where we are losing ground daily.  
• We also need to go one step further beyond PERM – an admittedly saner method than its predecessor, labor certification – to figure out how an American company can permanently hire a proven non-immigrant worker without apology, and without the artifice of advertising a position which has in reality been filled by an valuable, existing employee.  The current system not only defrauds U.S. applicants by deceiving them into believing a position is open but it makes a mockery of the meritocracy which has driven American industrial leadership for over a century.  The whole notion that an employer MUST hire an American worker to replace a proven worker who is in legal nonimmigrant status is anti-business and reeks of entitlement.  Send me all the hate mail you want and I’ll say the same thing I’ve said for 15 years: if you are an unemployed U.S. worker in the pharmaceutical, IT, and healthcare fields, send me your resume instead of the hate mail and I’ll find you a job.  (Not one resume in 15 years, despite so many spite-filled claims of displacement by foreign professionals.)  I’m not saying exploitation does not happen, but in 20 years of representing employers in these industries, I’ve never met a single employer who preferred to have to spend thousands on my fees and filing fees to hire a foreign worker than to hire a qualified American worker.  Not one.

Sadly, this is the hardest part…getting Congress to tackle the totality of problems.  While legislators such as those in Arizona can get a voting public behind a radical enforcement method because “they’ve had enough” of federal inaction, the price these legislators have to pay for CIS is too steep politically.  Support improved methods of permitting foreign workers into the U.S.?  Cease characterizing U.S. industries with high foreign worker needs as evil empires and taxing them to bring in the talent they need?  No way, Jose (and, politically correct as that might be, I am allowed to say it.)  The fact is that John Q  Public still thinks that we have plenty of  U.S. pharmacists, and can’t figure out why on earth the guy ringing up his blood pressure medicine, Q-Tips and Ensure at 8 p.m. is from Nigeria.

Comprehensive immigration reform?  Not in my backyard.

EXODUS: Movement of Job People (out of the U.S.)

With all due respect to the late Bob Marley, the title was "simply irresistable" given my topic for today.  Whoops, ditto for the late Robert Palmer. 

An "exodus" is not too dramatic a word to illustrate the latest trend in globalism, and it foretells of a grim future for the U.S.  When immigration reform was pulled last year, Microsoft's Bill Gates responded by announcing that since he couldn't bring in the talent he needed for his U.S. operations, his big new plant would be across the border in Canada, where the government generally works WITH employers, not against them.

With this month's same-day exhaustion of the paltry 65,000 annual H-IB professional worker visas available for U.S. fiscal year 2009 (beginning October 1, 2008), others are following suit: Oracle's VP Robert Hoffman told the Wall Street Journal last week that after having no choice but to send jobs last year to Ireland and India when it couldn't get enough H-1Bs, he had no choice but to look overseas for the 1000+ jobs he can't fill domestically.

It's not that complicated, Powers That Be:  American companies go through the hassle of bringing in foreign workers because we have a dramatic shortage of healthcare, IT, and science professionals which we simply do not fill with our own U.S. workforce.  Either we let these employers bring in the skilled workers they need OR they move the operation, lock, stock, and barrel full of jobs with ARE filled by U.S. workers to places where they can get the workforce mix they need.

Given the state of the economy, one would think that admitting legally-cleared, intelligent, dedicated professional workers to balance out our domestic workforce needs while protecting existing U.S. jobs and letting these good folks "work hard for the money" is a no-brainer.  (Whoops, there I go again: my apologies to the still-kickin'-hard Ms. Donna Summer.)

Reinventing Lawyers

I've noticed that as one grays around the temples, some sort of phenomenon gives others the impression that you know more than you knew before.  Suddenly, people who might never have listened to a word you had to say consider you a "resource" or, even worse, a "mentor".

In the case of my two sons --16 and 19 -- the phenomenon has eluded them; polite and wonderful as they are, it is clear from the rolling eyes that I've not much new to say.  Perhaps their epiphany of my wisdom will be manifested by some other physical change, perhaps false teeth, the continuing gravitational pull on my chin, or perhaps a prop (cane, walker, etc.).

In any event, the children of OTHER people seem to think I have something to say...and they are not shy about asking.  I probably have two or three conversations a month with someone considering law school.  I read them the Riot Act, explain market supply and demand, why associate attorneys are, in the vast majority of cases, today's version of galley slaves, killing themselves to enrich the fat coffers of their fat bosses, etc.  I tell them of the rewards of law, of the extraordinary buzz I get out of seeing the face of someone whose potential disaster I averted through my legal training and skills.  We discuss areas of practice (they ALL want to be international or immigration lawyers, poor souls) and they are always excited about our banter.

There is one subject, however, that takes them ALL by surprise:  it is when I tell them that while the tradition for lawyers is to graduate, get hired, and move up the food chain, the world of legal practice is changing dramatically and their reality will most likely be considerably different.  They must, I tell them, forget about that tradition and instead look ahead toward the practice of law as a tool with which they can find a meaningful, satisfying,  and financially rewarding career in the global economy.  I usually get the same response.

A blank stare.

The mythology of entitlement and order is being dashed to the ground by the global economy, and it stuns me that no one is really talking about its impact on the legal profession.  Law schools -- indeed ALL forms of higher education -- are one of the largest business sectors in the U.S.  Big money is spent on tuitions, on designer label visiting professors, and on the buildings which they call home.  So we look at little Joey, all grown up, talking about going to law school, isn't that wonderful...but we do not analyze the statistics which suggest that Joey might be better off starting his own web publishing business or taking that little eBay site he's done so well with up to the next level.  There is a considerable vested interest in our society in keeping those law schools full, and so Joey goes to law school.

In contrast, MBAs graduate with no uniform expectation of career path; the degree is viewed as a useful business tool preparing them for an infinite number of commercial possibilities, defined by their abilities, passions, and creativity.  A business partner of mine got his MBA and has spent his entire life in the non-profit sector.  Not so with a law degree, at least for the majority who seek it. I knew from day one of law school that I was not of the personality type which considers litigation "fun";  I knew I would not follow the "normal" career path most of my colleagues expected.  But today's prospective lawyers, despite the way the global economy is unfolding, remain oblivious to this new reality.  Instead of understanding the need to match their personal abilities and interests to what the economy demands, furious young law graduates ranting about their $150,000 in student loans and $8/hour clerkship are front page news in the Wall Street Journal.

Whoosh, just goes right over their brilliant little heads.

While we make a fine distinction -- sometimes passionately -- between "professions" and other industries, the truth is that, advanced degrees notwithstanding, doctors need patients every bit as much as plumbers need clogged pipes.  (Oh, the self discipline I am invoking to not inject a barrage of plumber/doctor wordplay at this point.)

The predictable career path of attorney lore is no more, but there is nothing to grieve about...change for improvement is always good.

Consider my very good friend, Casey.  Our family doctor for many years, he had a wonderful family practice.  We could drop by on a moment's notice if a kid got sick.  As is the case with so many physicians, after many years he came to the conclusion that there had to be a better way to practice.  He was tired of spending half his time running the business of being a physician, which only took away time from his passion...taking care of patients.

I would not describe Casey as anything other than smart and steady, but when the opportunity to join a large practice group materialized, he made the changes; going from a lovingly built private medical practice to a great big corporation was no minor event in his life.  Today, his time is spent on patients and he doesn't spend weekends paying bills and figuring out payroll.  Okay, so I don't know the receptionist anymore and I can't swing by to shoot the breeze because he is working very hard all day, but he is taking care of more people, has a great support system, owns his time and is very happy with the transition.

Change for improvement is ALWAYS good. 

Just as Casey found a new way of looking at his long-established medical practice, prospective and practicing lawyers would do well to similarly analyze the incredible inefficiencies which continue to characterize the U.S. legal system, depriving clients of the attention and service they deserve, and further eroding the reputation of our noble profession which is, after all, about helping other people.

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.

CAFTA Update- Costa Rica (Probably) Comes Aboard

Well, I've been checking online to confirm the facts but I still can't find definitive confirmation on Sunday's CAFTA vote in Costa Rica.  It APPEARS that voters approved it by a narrow (52%) margin.

Good for them if they did.  The call centers will remain open.  The export opportunities to the U.S. will expand for Costa Rican businesses.  The business centers and corporate affiliates will arrive in greater numbers, creating more jobs and stimulating the economy of this stunningly magnificent yet bureaucracy-ridden paradise.

Maybe my friend will get even get the dial up Internet access for which he's waited six months.

The lesson in Costa Rica is not so much about what Costa Rica WILL accomplish by becoming a participant in the Central American Free Trade Agreement.  The lesson, I believe, is about what they ALMOST didn't approve, and the economic decimation which faces economies which reject globalism for illusions of a world economy long dead and buried.

In today's economy, to the victor comes the spoils.  And so India booms and China explodes, and Brazil trots along, all via their homegrown workforces meeting global market demands.  Meanwhile. the U.S. endlessly debates whether our economy needs to increase the woefully inadequate 65,000 annual visa limit for H-1Bs and -- forgive me for repeating this yet AGAIN -- Bill Gates has no choice but to take his business -- and the thousands of jobs it creates --to Canada.  Unlike the legion of quality schools in India and China cranking out IT, technology, medical, and other professionals in high demand, the U.S. continues to graduate art history majors (no disrespect, I love art...but we just don't need that many, okay?)

Here are the facts about the H-1B workforce in the U.S.:

• H-1B visa holders represented only 1.2 percent of professionals employed in colleges and universities in 2001 and 1.4 percent in 2002.
• Even in the field of computer systems design, long stereotyped as the domain of foreign professionals, the share of H-1B visa holders dropped from 10.9 percent in 2001 to 4.4 percent in 2002.

Costa Ricans are divided as well, but the majority are smart enough to understand the consequences of burying their heads in the economic sand.  What about us?

CAFTA and Costa Rica: A Diorama of Globalism vs. Nationalism

Yesterday's referendum in Costa Rica on the proposed free trade on a free trade pact appears to be headed toward approval.  My Tico friends -- Costa Ricans refer to themselves as "Ticos" -- are pretty solidly divided on the issue: half believe that approval of the treaty is an indispensible part of Costa Rica's future, citing the fact that Costa Rica is the only remaining holdback (the Dominican Republic, Guatemala, Honduras, Nicaragua and El Salvador have already approved their participation.)  But a growing number of Ticos -- now about half -- are skeptical of the benefits of free trade, arguing that it could adversely affect Costa Rica's farmers and traditionally "sovereign" sectors such as telecommunications.

While I can't speak on the impact on farming, I can think of nothing better for Costa Rica and its people than to have direct competition leveled against its woefully inept telecommunications system.  The entry of U.S. providers would mean the end of the ICE (national phone company) monopoly, and that would be a good thing.

Jealously guarding a national industrial sector is anathema to a free market, and BOY does Costa Rica serve as living proof.  Recently , faced with dramatic losses from international long distance revenues, ICE demanded that VOIP - voice over internet -- be deemed an illegal infringement on the soveriegn control of telephony.  The lines of patient Ticos filling ICE offices speaks volumes about the reality of the situation:  getting a home internet line can take months, getting a cell phone can take even longer.

It's easier to get a cell phone in Equatorial Guinea, West Africa, an isolated island ruled by an authoritarian leader, than it is to get one in Costa Rica, where Oscar Arias is again at the helm. The same Oscar Arias who won the Nobel peace prize is now being called a "traitor" on his way into the CAFTA voting booth for supporting the free trade agreement.

Whether or not CAFTA passes in Costa Rica -- and it looks like it will -- the lessons from all the bruhaha leading up to the election are very telling for those of us involved in global business.  In the past, this kind of debate about entrenched national "rights" was limited to the Castros, Kims, and the uber-hystrionic Chavez...dictator/demagogues disguised as nationalists.  True leadership seeks market efficiencies; even the Chinese leadership, as control-driven as ever, has implemented broad reforms designed to improve the lives of the population.  So you would think that in a service and tourism driven economy such as Costa Rica, the current national division on free trade is a true aberration.

It isn't.  What it IS is a reflection of the nationlistic reflex we will increasingly see in a global economy, both in developed nations and in those less developed.  The reason is simple: human beings don't like change.  They are threatened by it. It is the tragic reason why so many choose to remain in an abusive relationship because they fear living alone.  It is why the majority of Americans, regardless of their political persuasion, are unable to deviate from the dogma of their respective political party and concede points to the opposing party.

Consider the BPO's (business process outsourcers) which have permeated Costa Rica's economy for the past decade.  Long hailed as a favorite call center location for both its political stability and educated workforce, thousands of Ticos work for leading U.S. and international companies, servicing calls throughout the English and Spanish speaking world.  The failure of Costa Ricans to approve CAFTA will surely mean the end of this industry and the loss of thousands of jobs, much as U.S. legislation against online gambling forced thousands of Ticos out of their online casino jobs.

Just as Bill Gates moved a major operation north to Canada the day after U.S. immigration reform fell apart earlier this year, the many Fortune 500 companies with call centers in Costa Rica will find more favorable conditions elsewhere...and more Tico jobs will disappear.

From my perspective, this phenomenon is like the diorama of a great war within each nation, where those seeking entitlement via national ownership of industries are up against the pragmatists who believe that the only possible way forward is through increased utilization of technologies and relationships which improve efficiencies and costs across the board.  Here in the U.S., when the bipartisan immigration reform bill was slayed, the "nationalists" won.  And the next day Microsoft had no choice but to head to Canada.

If you root out the emotional stuff -- that indignant demand that, darn it, this is OURS and we MUST own it -- invariably nationalism as applied to economic considerations is a folly, leading to some pretty dumb stuff.  I think Costa Rica has better things to do than arrest folks for using Skype.

The truth about this whole "Globalism vs. Nationalism" debate boils down to intelligent analysis.  To paraphrase Jeff Goldblum's character in Jurassic Park,  explaining how it was possible to have dinosaur eggs hatching when all the genetically-engineered dinosaurs were of one gender: Business will find a way. 

VIsionary leaders will understand that fact and steer their economies with that in mind, expending energy to define the highest value in workforce ability instead of digging in their heals to keep foreigners out.  Keeping a watchful eye on how this unfolds is critical for companies with global workforces.  Today's dream offshore location might be tomorrow's hyper-regulated backwater, and tomorrow we might be staffing places we can't even pronounce today.