Waterboys for the Snakeheads: Why Employment-based Immigration Is Always Wrong

The h-1b visa program is suddenly a hot topic on X, where Elon Musk whacked a hornets’ nest when he suggested the US lift the per-country caps on imported labor units. Here is an article I wrote 16 years ago from my own experience that illustrates why all work visa programs should be ended. All work visa programs are public policy directed toward private profit. That’s practically the definition of corruption. Any government program that is itself a corruption of the public sphere can never be anything but corrupt and more corrupt. As I discovered below, you can’t even imagine just how bad that gets.

May 18th, 2008

by Craig Nelsen

On May 13, 2008, the Bureau of Immigration and Customs Enforcement executed the largest single-site immigration raid in US history. The workplace raid netted 390 illegal aliens—nearly twenty percent of the population of Postville, a small village surrounded by the endless cornfields of northeast Iowa, and home of the detainees' employer, Agriprocessors, Inc., the nation's largest kosher meatpacking plant.

Federal officials have declined to comment about possible charges against the owners of Agriprocessors, and jaded Americans can be forgiven for assuming the employer will receive a slap on the wrist, if it receives any penalty at all.

But before you shrug and move on, it's worth noting that the feds aren't following the typical routine around the Postville raid. There may yet be some arrests in the offing higher up the ladder, with serious felony charges to follow.¹

There should be, anyway. The 390 detainees who were working in Agriprocessors' slaughterhouse are the vanilla surface of a much darker story underneath—a deeply troubling story that demands the owners of Agriprocessors be prosecuted to the full extent of the law.

If this story doesn't end with significant prison sentences handed down, there is, as they say, no justice.

An astonishing criminal enterprise

I first picked up the Agriprocessors story in May, 2004. The story begins far from Iowa's cornfields with the arrival of a Chinese national named Hu Yao Bin with his wife and two children on Cathay Pacific Airlines Flight CX872 at San Francisco's international airport .

The paperwork Mr. Hu presented to immigration inspectors at the airport was in order. It showed that a US employer named Aaron Rubashkin, president of Agriprocessors, Inc. of Postville, Iowa, had petitioned successfully for the visa that Mr. Hu and his family presented to immigration inspectors.

It should have been another rubber stamp entry. But no sooner had Mr. Hu and his family been cleared to enter the United States, permanently, than Mr. Hu blundered badly. As they were leaving he asked the inspecting officer to forward his Legal Permanent Resident card to his intended address in San Francisco's Chinatown—not to the kosher slaughterhouse in Iowa that was to be his place of employment.

Oops. That's one heck of a commute there, Mr. Hu. He was promptly referred to a second agent for questioning.

He confessed everything in the second interview. In a sworn statement, Mr. Hu said that his friend, Mr. Hu Shu Bin, had obtained the immigrant visa from the American consulate in Guangzhou, China. Mr Hu had paid his friend US$30,000—the standard fee "snakeheads" charge for a valid visa in China.

In the statement, Mr. Hu Yao Bin stated that Mr. Hu Shu Bin had arranged for the family to immigrate through an American immigration lawyer named Christopher A. Teras, who, Mr Hu told the agent, had processed hundreds of these cases.

When the interview was over, Mr. Hu received a "deferred inspection", or, in the popular vernacular, a “run letter”. He was released with a request that he reappear voluntarily at a later date.

After Mr. Hu and his family left to start their new lives as Americans, an ICE agent telephoned Agriprocessors. As it happened to be a Jewish holiday, the plant was closed. But a security guard named Warren Timmerman was on duty, and he showed no reluctance to talk to the agent.

He told the agent that, yes, "hundreds of Chinese" immigrants come to Postville to work at the slaughterhouse for a couple of weeks in order to fulfill their visa requirement, then disappear.

Interesting.

The agent then called Mr. Hu's attorney, Christopher Teras, a member of the American Immigration Lawyers Assn whose office was just down the street from my own in Washington, DC. A "Ms. Kim-attorney secretary", answered the telephone at the law firm. She too was very forthcoming. In a heavy Asian accent, she told the agent that $30,000 was a typical fee for someone like Mr. Hu, and that, yes, the firm "has successed for hundreds of such".

A brief explanation of how the labor certification process works

Mr. Hu and his family entered on an EW-3 immigrant visa, which is sponsored by an American employer who has successfully petitioned the Department of Labor for the right to import an unskilled foreign worker. This is also called a "labor certification". To secure a labor certification, an employer must first demonstrate it cannot find an American to do the job the employer wants filled. In this case, Agriprocessors had to demonstrate that it could not find an American to pack kosher meat.

To demonstrate it can't find an American worker, an employer places a help wanted ad in a local newspaper. In the ad, the employer must offer the "prevailing wage", a rate determined by the Department of Labor.

If, after running the ad for three weeks, the position is still unfilled, the employer has proven to the satisfaction of the Department of Labor that there are no Americans available to do the job. The employer can then file the EW-3 petition with the Department of Labor for the certification. When the Department of Labor approves the EW-3 petition, the sponsoring employer receives an approval letter, and the prospective immigrant or his attorney files an I-140 visa petition, which is the foundation for permanent residency.

When the I-140 is approved, the alien or his attorney receives a green card. However, thanks to a decision in a famous lawsuit we'll get to in a bit, the visa is transferable from one prospective immigrant to another. This transferability allows for all sorts of mischief and drastically increases the value of a visa. In Mr Hu's case, the visa was transferred to him on the street outside the American consulate in Guangzhou for $30,000.

The labor pool in Postville

The visa transferred to Hu Yao Bin in Guangdong Province for $30,000 was issued on the strength of Agriprocessors having proved to the Department of Labor that it was unable to fill an unskilled manual labor position at its plant in Postville, Iowa with an American worker. Because no Iowan was available to take the job, the meat-packing plant found it necessary to send all the way to China for a meat-cutter, and the Department of Labor agreed.

Under such circumstances, one would suppose Postville enjoyed an extremely tight labor market, with labor priced through the roof. But Census Bureau data show the opposite to be the case. Of the 2,273 people who live in Postville, one in eight (12.7 per cent) lives in poverty—including one in eight children. And even though the little town plays host to Agriprocessors, Inc., Iowa's seventh largest employer, the per capita income in Postville is only $14,264—less than half the transfer fee Mr. Hu paid in China for the visa that would allow him to uproot his family and travel all the way to Iowa to take the very job that had gone begging among the locals.

Something isn't right. While the working conditions at Agriprocessors are reportedly abusive and deplorable, and not only for the employees, still, how could it be that in a town with so many living in poverty, there wasn't a single resident willing to take the job?

The answer is in the wage rate set by the Department of Labor. At the time Mr. Hu Yao Bin's unskilled labor visa was petitioned for, the wage set by the Department of Labor (since raised) for a meat cutter in Allamakee County, Iowa, where Postville is located, was $6.50 per hour.

That hourly wage translates into a yearly salary of just $13,000—substantially lower than the already low per capita income in town, and 25 per cent below the poverty line for a family of four living in Iowa at that time.

No wonder no American was available to take the job.

Just think for a minute about what we have here. Imagine a guy trying to support a wife and two kids on a paycheck that keeps them just above the poverty line. If there is anybody to whom society should be giving a hand up, in my view, it is that guy. But if he wants the slaughterhouse job Agriprocessors is advertising in the local paper, at the rate set by his own government, he would have to accept a 25 percent pay cut.

Instead of helping that guy and his family, his government helps the employer drive down local wages. By giving the employer the right to import a cheaper human from abroad, the government helps ensure that the prevailing wage in the industry will never rise. Together, the employer and the government collaborate in cutting the struggling guy off at the knees and crippling his family's future.

Wrong, but legal (sort of)

If a foreign national enters the United States under the conditions just described, he has entered legally.

But wait. Legally? If Agriprocessors is cutting its struggling neighbors off at the knees legally, then why were those 390 mostly Guatemalans detained as illegal aliens in Postville last week?

In general, these Central Americans will have entered the country illegally, and none of them will have paid a smuggler anywhere near $30,000 to be smuggled in. They are on the lowest economic rung of all. In fact if you're a Guatemalan illegal alien, you can forget about that princely $6.50 per hour Agriprocessors advertises for the Americans. At Agriprocessors, according to the charges in a lawsuit reported by the Cedar Rapids (IA) Gazette, "Immigrants were paid $5 an hour and after three or four months, bumped up to $6."

Agriprocessors, you see, has two lucrative and pernicious schemes going. One scheme involves driving wages down to bare subsistence by hiring desperately poor illegal immigrants to work in its slaughterhouse—the criminal enterprise that made the news last week. The other involves fraudulently claiming that the United States has run out of native-born meat-cutters and then, with the help of American Immigration Lawyers Association member Christopher Teras, securing work visas for foreigners worth $30,000 each on the street in Guangzhou.

If it is the pattern and practice of Mr. Rubashkin, the sponsoring employer, of Mr. Teras, the immigration lawyer, and of Mr. Hu Shu Bin (almost certainly the agent of the sponsoring employer) to sponsor employees who consistently leave after two weeks, or who never show up in Postville at all, it militates against a finding that there ever was any intent to employ the alien for a reasonable period of time. The employer's defense of employment intent is removed and he is probably indictable under conspiracy and racketeering statutes, among others.

The Department of Homeland Security severely restricts (why?) the public's access to information it possesses about, for example, the number of visa applications a particular attorney has executed. Therefore, it is difficult to say how much profit the Teras-Postville scheme generated.

However, Mr. Timmerman, Ms. Kim, and Mr. Hu all claimed, according to the charging document in the Hu case, that the Teras-Postville scheme generated "hundreds" of such cases.

Let's say the Teras-Postville scheme collaborated on 200 such visas. At $30,000 per person, 200 such entries would have generated six million dollars.

But isn't it a little hard to believe such a large scale fraud involving so many people could go undetected for years?

A famous case against an immigration lawyer named Samuel Kooritzky is instructive. While in that case labor certifications were being filed for nonexistent businesses, or for businesses that actually existed, but without the businesses' knowledge that the certifications were being filed, the Kooritzky case shows how the scheme operates, and on what potential scale. At the immigration lawyer's trial in December, 2002, a Department of Labor special agent testified that Kooritzky "filed 2,200 phony labor applications last year alone." Kooritzky v. Herman DC U.S. Court of Appeals, 1999

From an article by Tom Jackman, who covered the Kooritzky case for the Washington Post:

There's every reason to believe this is going on all over the country," said Ben Ferro, a former INS district director in Baltimore. Ferro said the INS doesn't have enough agents to track internal visa schemes, particularly with increased border scrutiny and other changes in priorities since Sept. 11. "There are many, many areas of immigration law that, because INS doesn't have the ability or willingness to monitor and stamp them out, it goes unchecked," he said. "And when these things are found, they're usually only prosecuted when they reach the kinds of numbers you're talking about here.

Kooritzky was convicted of filing thousands of petitions and led away from the courtroom in handcuffs to serve time in prison. But there is more to the Kooritzky case.

In 1991, eight years before he was sentenced to prison for running a massive fraud enterprise, the Department of Labor published an "interim final rule", which terminated the right of employers to substitute one immigrant applicant for another in the labor certification process. The rule change would have made it much harder to sell labor visas on the street outside the American consulate in Guangzhou, for example.

Kooritzky sued the Secretary of Labor, arguing that the rule had been published unfairly. The district court ruled in Department of Labor's favor, but the US Court of Appeals for the District of Columbia reversed, concluding that Department of Labor had promulgated its rule without adequate notice and comment. Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994).

The appellate court's ruling made it much easier for immigration lawyers to engage in wholesale visa fraud, as Kooritzky himself did with a vengeance, as it turns out. But Kooritzky wasn't satisfied with his victory back in 1994. After prevailing on the merits, Kooritzky sought to recover attorney fees from the Department of Labor—even though he had represented himself in the suit. And even though no other attorneys had entered an appearance on Kooritzky's behalf during the merits phase of the case, Kooritzky sought to recover attorney fees for other immigration lawyers, too, who, he claimed, had helped him on the case.

The Department of Labor declined to pay Kooritzky Kooritzky's attorney fees, so, on March 1, 1995, Kooritzky moved for an award of attorney fees of $427,662 in district court. The district court awarded Kooritzky and his co-counsel a portion of that amount. Both sides appealed to the US Court of Appeals for the District of Columbia, which eventually denied Kooritzky any fees at all.

Arguing the appeal for Kooritzky was one of the immigration lawyers Kooritzky claimed had served as co-counsel in the original suit against the Department of Labor. That attorney was Mr. Christopher Teras, the Washington, DC attorney for Hu Yao Bin, the imported Chinese meat-cutter with the 3,000 mile daily commute from San Francisco to his minimum wage job cutting meat at Agriprocessors in Postville, Iowa.

Waterboys for the snakeheads

I received the information about the Hu Yao Bin case back in 2004 from an ICE agent who told me, "You know, Craig, this stuff goes on all the time. It's like we are waterboys for the snakeheads, performing our part by stamping these visas approved. It's wrong, but it just seems to go on forever. We mostly get used to it, but sometimes it really bothers me."

He asked me to do what I could to bring attention to the case so that it didn't just disappear.

I passed the information on to a member of the Iowa congressional delegation, who duly called the special investigations unit in San Francisco, which wondered why he was calling. The visa was perfectly legal, he was told, and so the congressman let the matter drop.

I sent the story to several newspapers, but only the Omaha World Herald ran a small bit, and I gave a long interview to the top morning drive time radio program in Des Moines about the Postville scheme.

One reporter I contacted was Tom Jackman of the Washington Post, who had covered the Kooritsky trial in 2002. When I described the documents I had in my possession, he became very excited. “I'm on deadline now, he said, but as soon as I file this, I'll call my editor to get the go ahead, and then get back to you”.

And then, I didn't hear back from him. So I called Mr. Jackman again. He was apologetic. His editor, he told me, had nixed the story.²

So, to the agent who asked me to help bring attention to the Hu case: I'm sorry to have failed you; you see what we are up against. But perhaps it wasn't a total failure. I also forwarded the information to the ICE office in Iowa, the same office that led the arrests last week in Postville. However, if there are no more arrests—if the application of the law is limited to Guatemalans, to the people on the very bottom rung of the ladder, not only will I have failed, so will we as a people have failed.

I hold out hope that we are not so far gone, that the owners of Agriprocessors will face justice.

The heart of the problem

The biggest obstacle I see to cleaning up our nation's immigration mess—bigger than the American Immigration Lawyers Assn and the panting greed of its members, bigger than subversive newsroom editors, bigger than employers like Aaron Rubashkin—is the public corruption that seems to have this country by the throat.

One form of that corruption is campaign contributions—a practice that is destroying our democracy and simply has to stop. From 2000 to 2004, Agriprocessors contributed $2,000 to Congressman Noach Dear of Brooklyn, $2,500 to Congressman Jim Nussle of Iowa, $2,000 to the National Republican Congressional Cmte, and $14,000 to Senator Arlen Specter. Each of these recipients during this time period actively worked against the wishes and well-being of the American people on the immigration issue in Washington.

From 2000 to 2004, Agriprocessors also gave $3,550 to the Republican Party of Iowa, which repeatedly acquiesced in the betrayal of Iowans on the immigration issue during Governor Tom Vilsack's administration, and $5,500 to Stan Thompson, an Iowa Republican who challenged Democratic incumbent Leonard Boswell in Iowa's 3rd congressional district in 2002 and again in 2004.

How is Stan Thompson on immigration? When ProjectUSA put up billboards in Des Moines during the 2004 campaign advertising the fact that, in Washington, Rep. Boswell supported amnesty for illegal aliens, the immigration issue exploded into the race. Rep. Boswell was left hurling invective and fuming, but ineffectively, since the billboards were accurate. Enter challenger Stan Thompson. Thompson not only failed to capitalize on the gift he'd been handed, but neutered the billboard campaign by publicly condemning it! To whose interests was Stan Thompson hewing? The voters' of Iowa? The struggling guy's in Postville with a wife and two kids to support? Or the interests of Agriprocessors, his campaign donor?

In 2004, the year the Department of Labor approved the $30,000 visa for Agriprocessors, the total that lobbyists in Washington reported in client fees on filing documents that listed both 1) the Department of Labor as a government entity lobbied, and 2) immigration as an issue lobbied on was $74,740,904. That's 5,240 times the per capita yearly income in Postville.

A similar amount was spent the year before that, and also in the year after, and the year after that. Every year, in fact, business interests dump hundreds of millions of dollars in "lobbying" money on the Department of Labor, as well as on dozens of other departments, on the House of Representatives, on the Senate, and on the White House.

But the Department of Labor, like the entire federal apparatus, is supposed to be concerned with our best interests. Exclusively. Every dollar spent by the corporations to influence legislation so that it benefits their own bottom line is a dollar's worth of our best interests taken from us and transferred to someone richer and more powerful than we.

The outrage of Postville is the result.

Private profit should never be the justification for public policy, particularly immigration policy. Public policy should always be in the public good only. Employment-based visas are always in the interest of private profit, thus, any employment-based visa program will always be hopelessly corrupt.

1. There were. The owner’s son went to prison. Donald Trump commuted his sentence.

2. This was the third time in the space of a few years in which I had contacted a Washington Post reporter with a story concerned in some way with the immigration issue. The reporter would express very strong initial interest in the information, but then would tell me his or her editor had killed the story. One of the other two times involved an aspect of the Jack Abramoff case, her coverage for which the reporter I talked to won a Pulitzer; the other concerned the manifestly corrupt activities of Congressman Chris Cannon of Utah. (It was while I was looking into Cannon's activities that I first came across the name Christopher Teras. Teras has made two political contributions in his life large enough to be recorded. Both were in 2004. One was to Chris Cannon during the campaign in which my organization, ProjectUSA, was giving him fits, the other to a woman named Joanna Conti, who ran against Rep Tom Tancredo on the immigration issue that year.) In all three cases, the information I had was documented, it involved serious violations of immigration law, the guilty parties' activities contributed substantially to the tidal wave of non-white mass immigration into the United States, and in all three cases, an unnamed editor at the Washington Post ran interference—the impact of which was the continued subversion of US immigration law.