Immigration Law

THE CULTURE OF NO

By Greg Siskind

There are so many aspects to our dysfunctional immigration system that it's hard to think where to begin. The massive visa queues, the lack of consistency in decision making, 1980s technology? But this story from the Seattle Times just made me angry. A University of Idaho researcher from Poland who is working on bioterrorism defenses is facing deportation because of too much glare in the eyeglasses on her green card application photos. I kid you not.

There are a lot of adjudicators at USCIS who are very reasonable and who will try and be flexible in terms of allowing for minor errors to be corrected. These are good people who understand that people's lives can be shattered by virtue of a click of the adjudicator's mouse. And then there are adjudicators that are still either living in fear of approving the one case that turns out to be another 9/11 hijacker and refuse to show any sense of reasonableness. Or they are just mean spirited and don't care about the impact of their refusal to show some mercy.

The stakes for violations of this sort just got higher. Last week, USCIS amended its Adjudicators Field Manual to state that unauthorized work that occurs AFTER an adjustment application is pending (such as a day of work in between the expiration date of a non-immigrant work visa I-94 and the start date on an employment card) will be enough to trigger the denial of an adjustment application and possible deportation.

That's a complete reversal of decades of policy and there is really no good policy reason for this, in my humble opinion. Aside from creating jobs for USCIS employees, I don't believe there is any serious justification for having an employment authorization document. Why not just make employment authorization incident to the filing of an adjustment application? EAD applications are granted to all that apply (except, apparently, for those with too much glare in their glasses) so it is not like there is some great hurdle that must be overcome to get the card. Still, one must typically wait 90 days to get the document in the mail and often they cannot earn a living during that time. In some cases, applicants can lose their job because their employers are unable to wait on USCIS for the card.

How would making employment authorization incident to status work? Basically, one would simply be authorized to work by virtue of having properly filed an adjustment of status application. Proof of employment authorization would simply be the receipt for the adjustment application. The receipt would be a List C document for I-9 employment verification purposes and would instruct the employer that the document is evidence of employment authorization. This seemingly small change would save hundreds of millions of dollars and be tremendously convenient for all concerned. And we could avoid ridiculous cases like that of the Idaho researcher.

Full post as published by Greg Siskind's Blog on August 05, 2008 (boomark / email).