Ignorance of Immigration Reality

My last blog post triggered a florid response.  An unknown commenter with the handle "Federale" described the post, "Immigration Indifference - The Adjudicator's Curse," as "nothing more than immigration bar propoganda (sic)."  Federale's comment disputed my claim that fear of fraud influences the actions of Center Adjudications Officers (CAOs), asserting that the trepidation in question is rather of fearsome supervisors who impose burdensome quotas on CAOs.  Evoking images of the unstoppable assembly lines in Charlie Chaplin's Modern Times, Federale bemoans the plight of the CAO:

This post just shows your ignorance of reality. USCIS Immigration Services Officers (ISO) and Center Adjudication Officers do not work in fear of fraud, but in fear of their managers who have imposed a strict set of quotas on them. For ISOs in the field offices, they must adjudicate 10 cases a day. In reality this means approving 10 cases a day, because if they deny a case, they must justify that denial in writing. They need to do nothing if the application is approved. And they are not authorized overtime to write denials. So, to meet the USCIS management's quota, they cannot deny cases. It is a wonder that any cases are denied at all, unless they are referred to the National Security and Fraud Detection unit. Even then, an ISO must write a referral through a supervisor to refer a case to NSFD. So your claim that ISOs and CAOs act out of fear of fraud is not true. In fact, ISOs and CAOs live in fear of a bad evaluation if they spend time writing a denial or a referal (sic) to NSFD.

Federale claims it's "a wonder that any cases are denied at all, unless they are referred to the National Security and Fraud Detection unit."  How then would Federale explain the case of woebegotten Pastor Ben Neufeld, his wife and children?  They now must live apart for ten years because their request to extend the family's nonimmigrant status was timely submitted, but, alas, on the wrong form. As Ted Chiappari and I noted in last Monday's New York Law Journal (available here with permission of Incisive Media, the copyright holder):

Even the most zealous supporters of a restrictive immigration policy should be asking themselves whether the administration of our immigration laws ought to be entrusted to an agency so heartless or brainless as to separate a pastor from his family over a minor technicality that immigration officers, by statute and regulation, are allowed to forgive. . .

An innocent and trivial mistake by law-abiding people who are otherwise eligible to be here and who have been trying to comply with the law should not produce the draconian consequence of a ten-year bar to reentry to the United States. This kind of nonsense undermines the rule of law, and makes it hard to take seriously an agency that issues these kinds of asinine decisions. It apparently is too tall an order (although it really should not be) for USCIS to translate a large and admittedly complex body of statutes into forms and instructions understandable to a lay person. Indeed, . . . USCIS cannot even promulgate regulations to interpret new immigration laws in a timely fashion. If [the USCIS] . . . cannot publish clear instructions, forms and regulations, at least its adjudicators deciding requests for immigration benefits must be instructed on how to exercise wisely the discretionary authority they possess to forgive the mistakes that inevitably happen.

One thing on which Federale and I agree is that there's something dramatically amiss when a business model rewards the wrong outcomes.  As the Wall St. Journal reported on August 24 ("'Billable Hour' Under Attack - In Recession, Companies Push Law Firms for Flat-Fee Contracts"), chief legal officers of many corporations are fed up with the billable hour, an outmoded business model rewarding delay and inefficiency, still utilized by a supermajority of attorneys in virtually all full-service law firms (with the notable exception of a few enlightened law firms and of immigration lawyers, who typically bill by the project). 

Service organizations that "get it" realize the need to align their interests with those of customers and other stakeholders.  These providers increasingly use approaches that promote quality, efficiency, integrity and customer service.  They have learned that operational excellence is attainable in virtually every organization.  It takes listening to the 'voice of the client' and engaging in such data-driven techniques as process mapping, kaizen (continuous incremental improvement), elimination of waste and reduction of cycle time, all grouped under the proven business-improvement strategy, endorsed by the U.S. military, known as lean six sigma.

So whether the problem with the CAOs and DAOs (District Adjudications Officers) of USCIS is fear of fraud or fear of the poison pens of punitive supervisors, I'm afraid its well past the time for this agency to engage in an authentic transformation by adopting a completely new and dramatically improved business model.

Comments

[Bhushan]

Iam currently woknirg on L1 B Visa valid till 2014. But I apllied for COS to H1 B Visa in Oct 2011 which got approved on 25th Jan 2012. Now I don’t want to work for new employer i.e I want to stick to my L1 b Visa only. How is this possible to do this. Kindly suugest me the way to maintain my L1 B visa.

[Federale]

First, a note for readers, District Adjudications Officers, DAOs, no longer exist. Their title has been changed to Immigration Services Officer.

Next, as to the case of the hapless minister, a violation is a violation, and those, for the most part, are the only denials that occur, e.g. technical violations.

Perhaps that is just a lesson to have a good immigration attorney who knows the details. But in any event, the R visa is one of the most abused in immigration and should be repealed. Of all the nations in the world, the U.S. is the most Christian, and should be able to provide its own ministers.

But in reference to the R visa, which is a total and complete fraud, technical violations are the only way an ISO not assigned to the National Security and Fraud Detection section, can deny a petition. Fortuneately technical violations are the way most fraudulent petitions are dealt with as well. USCIS takes to heart the Al Capone strategy, if you can't get them for terrorism or fraud, get then on a lesser offense. And that has saved the U.S. many a time when an Al Queda sleeper or sympathizer has tried to file a petition.

But I noticed that Paparelli did not address the facts of my post, which is hard quotas that ISOs and CAOs have. Even Asylum Officers have a hard quota of 9 cases a week, and this based on four day interviewing week with Friday being an administrative work day.

There is a built in bias for approvals. Note also that ISOs don't even have fraud referrals mentioned on their Performance Plan, e.g. evaluation.

[Angelo Paparelli]

Ron:

I know you have studied the Paperwork Reduction Act, and understand its purpose, which is to reduce the burden imposed by bureauracies on members of the public in responding to unjustified requests for information. How about writing a guest post on this blog and enlightening our readers on how to enforce the public protections of the PRA?

Thanks for your comment.

Angelo Paparelli

[Ron Gotcher]

Extremely well said. The CIS insists on interpreting the regulations in the strictest possible fashion, yet thinks nothing of violating the laws that apply to them. Clearly, they have never even heard of the Paperwork Reduction Act and its prohibition on boilerplate, unapproved data collectors.