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The historian said to the venture capitalist, "Let's drop the pious baloney," as each sought the highest office in the land. No, this post is not the set-up to a joke, except perhaps a nod to the risible circular firing squad that the GOP presidential candidates have formed. And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law. Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.Rather, the reverential "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abatoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). In essence, the IG reports that:"Immigration law is complex, and USCIS administers benefits of great value." "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together. They should rub elbows more often, and ISOs need more fraud-detection training.Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications). Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.USCIS guidance on when to request additional evidence is confusing.Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. " Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection": Wherever possible there must be independent confirmation of the facts Encourage substantive debate on the evidence by knowledgeable proponents of all points of view. Arguments from authority carry little weight.Spin more than one hypothesis - don't simply run with the first idea that caught your fancy. Try not to get overly attached to a hypothesis just because it's yours. Quantify, wherever possible. The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud. Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad. Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.The IG also erred when it extrapolated from a very small sample of USCIS employees 147 managers and staff, and received 256 responses to an online survey. As AILA President Eleanor Pelta has noted:[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions. It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)The IG readily acknowledged that inferences drawn from its findings may be unjustified:[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).Also absent from the IG report is any recognition that the benefits made available by Congress to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions. It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. To its credit, the leadership at USCIS challenged the IG report on several grounds. The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case. Roxie Bacon, however, offered me a very different and revealing analysis of that matter:The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in determining the proper standards of determining eligibility in EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigraation and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.We are a Nation of Immigrators, not a nation of suckers.
Immigration stakeholders howled with joy this week over an announcement by Janet Napolitano, the Secretary of Homeland Security (DHS), and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), about the forthcoming publication of a new immigration regulation.
Usually, the intention to publish a rule is no cause for huzzahs. But this Notice of Intent is different. It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file "provisional waiver" applications in the U.S. rather than abroad.
Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act. Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).
The announcement generated praise from editorialists (a "Common-Sense Immigration Move") and the immigration bar ("the move is . . . smart enforcement because it will reduce the illegal immigrant population and allow [DHS] to better focus its resources on keeping America secure and safe"). However laudable the effort to establish a "provisional waiver" rule that avoids family separation, its scope, regrettably, is limited. It ignores the pain of family separation where the qualifying relative is a permanent resident who suffers hardship no less extreme than a citizen's, and only covers unlawful-presence waivers, even though the immigration laws provide several other inadmissibility grounds that permit an extreme-hardship waiver.
The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage.
Three articles from The Daily, "a national multimedia iPad publication" subsidized by the Rupert Murdoch empire, reported the leaked contents of a draft DHS Inspector General report commissioned at the behest of Republican Senator Charles Grassley. The Daily articles carry breathless headlines conveying the sense that dastardly deeds are about to be uncovered ("RUBBER STAMP[:] Probe reveals feds pressuring agents to rush immigrant visas - even if fraud is feared," "PUSHING THE ENVELOPE[:]Immigration counsel in conflict-of-interest probe over visa approval," and "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests").
The first article is based on a "40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security." The article, citing the IG's draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that "they have been pressured to approve questionable cases, sometimes 'against their will.'" The IG does not identify any wrong-doers by name. Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red "APPROVED" rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed "get to yes" campaign.
The Daily's initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to "get to yes". None of the 75% of adjudicators who disputed the claims of pressure to say "yes" is quoted in the article, only private lawyers who nonetheless believed that "officers are just looking for reasons to deny a case". The accompanying photo and the "RUBBER STAMP" headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS. The reporter, moreover, presumes that the griping adjudicators actually know the immigration law -- even though precious few adjudicators are lawyers.
I wrote this email to the reporter with a caption, "Much more to the story than you've published," offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG's draft report. Her answer: "We are not distributing the draft report as of yet, but I'll reach out to you when I do a followup." Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) -- the source of the original complaint to Senator Grassley -- is not a high priority.
The Daily's second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if "a visiting scholar of geography from Mongolia," petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post.
Although the second article notes the IG's reported belief that her "efforts were not based on reasonable interpretations of the law," I have my sincere doubts, especially without seeing the underlying case file. Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability. On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators' decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning. In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.
The final article in this trilogy, "IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests," shows how politics is played in an election year. Rather than waiting till the Inspector General completes his report, House Judiciary Committee Chairman, Republican Lamar Smith, is eager to investigate alleged abuses that "threaten 'the integrity of our immigration system.'"
Indignant at the charges, Rep. Smith told The Daily:
"It's outrageous that administration officials would compromise national security for their own political agenda and gain," Smith said, pointing out that visa applications often lead to U.S. citizenship. "The president's most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm."
(This is the same Rep. Smith who -- in most un-Republican fashion -- has cozied up to the ICE officer's labor union, which "so far [has] not allowed its members to participate in the training" required to exercise prosecutorial discretion properly when enforcing the immigration laws.)
What The Daily's reporting fails to recognize, however, is that the conjured controversy within USCIS is merely an internal employment dispute magnified by a small group of power-mad, disgruntled and insubordinate adjudicators masquerading as whistleblowers who -- like Peter and the Wolf, imagine or fabricate broad-based threats to the immigration system and the nation's security. In reality, these adjudicators are "mutineers" who use Washingtonian gamesmanship to fight Director Mayorkas "tooth and nail over every innovation and improvement he [has] proposed."
Imagine what DHS might have done and yet do to improve the workings of the legal immigration system were it not for the spine-chilling howls of riled adjudicators who trump up controversies merely to play out the clock (they hope) till a different administration comes to power -- one that might be pleased to return to the "culture of no." Consider also another type of "Howling" -- one from the 1981 film of the same name, in which a reporter "is sent to a . . . center whose inhabitants may not be what they seem."
The dog days of August are behind us, yet the economic doldrums persist. Unemployment remains unchanged and unacceptably high at 9.1%. The White House forecaststhat it will stay there through the New Year and then likely drop only a tenth of a percentage point for all of 2012.
Congress returns this week to Washington. Vituperation in lieu of legislative action will soon begin. The media kerfuffle over the timing of the Obama-Jobs speech enraged most citizen observers. Meantime, pundits are asking about the content of the President's speech: Will he go large to appease dispirited Progressives? Or, will he propose modest measures that "the Left [won't] understand" in the hope of winning bipartisan support.
American politicians and special interests seem to have forgotten the "vigorous virtues [of self-reliance, personal responsibility, industriousness and a passion for freedom]," as David Brooks, op-ed columnist for the New York Times, observes. Brooks argues, convincingly, that as a result of this forgetfulness (I would call it blind and callous indifference) a "specter [is] haunting American politics: national decline."
The descent, however, is not inevitable. It can be reversed. A largely unseen, silent, law-abiding yet shackled group within our midst embodies all of the vigorous virtues. They are the sojourners from abroad who are yoked to the constricting terms and conditions of a U.S. employer's work visa petition. These hard-working souls are prohibited by law and dubious agency interpretations from using their ideas, talents, capital and energy to start companies and hire American workers.
Fortunately, no act of Congress is required to unleash these innovators, entrepreneurs and job creators and empower them to work their magic.
The White House already knows it possesses the authority through executive action in immigration matters. The Administration's recalibration of its immigration enforcement priorities has evoked little public outcry. Disinformation, however, is spreading but failing to gain much traction. The "Backdoor Amnesty" dog has no legs and won't hunt.
If unauthorized immigrants with positive equities warrant legitimate administrative relief, as they clearly do, why not reward the more deserving foreign citizens who have patiently waited and played by the rules?
The President should therefore continue trying to jump start job-creation and allow the next generation of Apples, Googles and as yet unimagined supercompanies to take root in American soil and thrive. The White House's early steps "to Promote Startup Enterprises and Spur Job Creation" have been criticized, however, in this blog and elsewhere, as overly narrow and unhelpful. These missteps are not failures. They are merely invitations to persist, as the iconic American innovator, Thomas Edison, reminds us ("I have not failed. I've just found 10,000 ways that won't work").
Here then are my suggestions to President Obama for administrative reform of the legal immigration system, as presented to attendees at an outstanding event convened on August 31 in Los Angeles by January Contreras, the USCIS Ombudsman ("Listening Session to Explore Small and Start-Up Business Immigration Issues"):
Instruct U.S. Citizenship and Immigration Services (USCIS) to rescind the January 8, 2010 "Neufeld Memorandum" on employer-employee relationships and replace it with a regulation expressly allowing immigration self-sponsorship by owner-entrepreneurs in a broad array of work visa categories for employment on company premises and at customer sites.
Instruct USCIS and the State Department to issue -- on an expedited basis -- replacement or initial regulations interpreting the following laws in the expansive and job-creating spirit that Congress intended: The Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998, and the American Competitiveness in the Twenty-First Century Act of 2000. These regulations should, e.g., broaden eligibility for all categories of the L-1 Intracompany Transferee visa, particularly for start-up operations, function managers and specialized knowledge personnel.
Instruct USCIS to focus on improving the quality of adjudications by improving the corps of adjudicators who make employment-based immigration decisions:
Impose stricter hiring requirements, including the minimum of a relevant bachelor's degree (if it takes that to receive an H-1B visa, the same should apply to grant one), strong writing and analytical skills.
Cause the Small Business Administration to provide training to adjudicators on the characteristics, contributions and challenges of small businesses and startups.
Review performance metrics and institute sanctions for improper issuance of Requests for Evidence, Notices of Intent to Deny and Revocation notices, while rewarding positive behaviors.
Instruct USCIS to grant nonimmigrants in lawful immigration status the benefits of "parole in place" and open-market work authorization upon submission of proof that they will open a business, buy a home, hire U.S. workers or devise an innovative technology, good or service.
Instruct USCIS to allow beneficiaries of approved employment- or family-based immigrant visa petitions whose place in the visa queue is backlogged to apply for adjustment of status (thereby entitling them to open-market work permits until they reach the front of the visa line and can receive green card approval).
Instruct USCIS to allow Premium Processing of employment-based Administrative Appeals Office appeals and all Motions to Reopen or Reconsider along with the tolling of unlawful presence penalties and the grant of employment authorization during the pendency of non-frivolous filings.
Instruct the Labor Department to add entrepreneurs and investors to the pre-certified Schedule A labor certification exemption, and allow an entity owned by such individuals to self-sponsor for green card status.
Instruct USCIS to publicize its 2008 Notice prohibiting internal retaliation against small businesses, define "retaliation" broadly and pursue violations aggressively.
Instruct USCIS to eliminate the Directorate, Fraud Detection and National Security (FDNS), and instruct U.S. Immigration and Customs Enforcement (ICE) to exercise all investigative and enforcement functions involving alleged immigration benefits fraud and immigration-related national security concerns.
Instruct ICE to investigate only those small business violations based on articulable and reasonable cause that a violation of the INA has occurred. Stop the guilty until proven innocent approach currently in use.
Instruct USCIS to appoint an Associate Director who reports directly to the Director and who is solely responsible for promoting and facilitating the grant of employment based immigration benefits and reporting actions by USCIS personnel that impede, impair or deny the grant of such benefits to deserving parties. This Associate Director would also have authority to intervene under the Homeland Security Act when the State Department takes actions that unreasonably interfere with or deny immigration benefits to startups and small businesses.
Require strict compliance by all immigration agencies with the notice-and-comment requirements of the Administrative Procedure Act and the small-business-impact analysis required under the Regulatory Flexibility Act, and phase out the practice of issuing guidance by policy memorandum.
Instruct and empower the Small Business Administration's Office of Advocacy to review and recommend changes to DHS, DOL and DOS rules that adversely affect job creation, entrepreneurship, investment and innovation by small businesses and start-ups.
As we await the President's address to a joint session of Congress, many anticipate that at least one proposal will be to rebuild our nation's existing infrastructure -- the roads, bridges, waterways, and rails. Let's hope he also includes legitimate administrative fixes to our creaking and crotchety LEGAL immigration infrastructure. American citizens looking for jobs deserve nothing less.
I think that . . . there's no doubt about the seriousness of the problem . . . We have a cancer--within, close to the Presidency, that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself.
[John] Dean [recapping] the history of the Watergate break-in and subsequent cover-up for . . . President [Nixon]. March 21, 1973
Perhaps only slightly less virulent than the Watergate variety, a cancer is spreading within U.S. Citizenship and Immigration Services (USCIS). The malignancy began with the persistent refusal of U.S. Immigration and Customs Enforcement (ICE) to fulfill its Congressionally appointed police mission under the Homeland Security Act (HSA). Beginning in 2003 ICE routinely turned a deaf ear to the pleas of USCIS adjudicators to pursue suspected immigration-benefits fraud. Frustrated that fraudsters were going unpunished, USCIS similarly ignored the HSA and created a unit, now elevated to a Directorate, known as Fraud Detection and National Security (FDNS).
The HSA's walling off of immigration-benefits adjudication (a task Congress assigned to USCIS) fromimmigration enforcement (the shared province of ICE and U.S. Customs and Border Protection [CBP]) reflected a conscious legislative decision. Hearings in the late 1990s laid bare the longstanding problems of the former Immigration and Naturalization Service (INS) whose conflicting missions of enforcement and benefits had generated decades of immigration dysfunction.
Afflicted with selective amnesia, however, Congress failed to rebuke ICE or USCIS for crossing the prescribed lines. Instead, federal lawmakers fueled the mission-creep by larding FDNS with anti-fraud fees paid by businesses seeking immigration benefits for H-1B and L-1 workers. The result has been that FDNS, staffed with 700 officers and an untolled number of private investigators, has conducted tens of thousands of "site visits" at business organizations and religious institutions throughout the country.
An August 24 New York Law Journal article, co-authored by Ted Chiappari and me, available here, describes what can go wrong when FDNS site visits (which really should be called what they are, governmental investigations) are structured in a way to create merely an impression that the integrity of the immigration-benefits adjudication process is safeguarded when, in reality, the requirements for a meaningful and fair investigation are ignored. As one truth-telling FDNS officer explained to the DHS Office of Inspector General (p.15):
Congress has been told by FDNS that there is a bunch of fraud, so Congress is asking for the proof. [Headquarters] HQ FDNS is asking the field to find the fraud so it can be shown to Congress. And I sense HQ FDNS' frustration with the field because we aren't finding it.... Some of the leadership personnel have never been adjudicators, so they are completely out of touch with reality.
So why, then, do I liken the activities of FDNS to a spreading cancer? Here goes:
Free Radicals. FDNS, like the free radicals that damage healthy organisms, takes aggressive actions without regard to the well-being of the functioning corpus politicus. FDNS has not published a notice in the Federal Register allowing public comment on how it conducts investigations of the H-1B and L-1 visa categories and has never undertaken a Regulatory Flexibility Act analysis to determine the impact of these investigations on small businesses.
Vulnerable Victims. FDNS through its unannounced site visits invades the premises of unsuspecting and unprepared petitioning organizations. These on-site interrogations, akin to fishing expeditions, are not based on probable cause that a violation of the immigration laws has occurred; nor are they supported by a judicial search warrant. FDNS provides no prior notice of the investigation to attorneys whom the agency knows are representing the sponsor or the foreign beneficiary. The records FDNS asks to inspect and the individuals it seeks to interrogate are often, quite legitimately, at other locations; yet the investigators do not allow an opportunity to summon the records or the persons or reconvene at a later date. Instead, its officers merely write a report that outlines "suspicious" circumstances.
Voracious Behavior. Like a spreading cancer, FDNS breaks down healthy structures. Its investigative techniques flout existing USCIS regulations which prescribe that if the agency desires additional information or testimony it must send a written request for evidence or schedule an interview at a USCIS office.
Toxic Effects. Like a cancer, the growing influence of FDNS is debilitating the adjudication process by impairing customer service, speed of adjudication, and predictability of outcome, aslast year's internal revolt at the California Service Center and the ongoing opposition of USCIS adjudicators to headquarters policies reflect. FDNS has arrogated to itself a policing function, rightly the role of ICE under the HSA, that is at cross purposes, just like at the old bipolar INS, to the core function of USCIS -- the rendering of a decision, based on the evidence of record, to approve or deny a request for a particular immigration benefit.
Surgery and Radiation. While cancer as yet has not been cured, medical science often succeeds in causing a state of remission. Doctors typically do this by means of surgery and radiation. So too with FDNS. Congress or the President should excise this alien growth from the benefits-adjudication process. It should also apply irradiation prophylactics to prevent a recurrence of anti-fraud tumors within USCIS. To the degree that purgatives are required to remove harmful impurities and maintain the health and integrity of our U.S. immigration system, they should be exclusively of the ICE-y variety.
John Dean's words about Watergate and its cancerous effects could just as readily be applied to the pernicious behaviors of FDNS: "We have a cancer . . . that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself." Just as Watergate posed a threat to constitutional government, FDNS is dealing a body-blow to the Fourth Amendment's protection against "unreasonable searches and seizures." Cut it out.
In my last post, I quoted Roxana Bacon, the former Chief Counsel of U.S. Citizenship and Immigration Services (USCIS), our nation's premier agency charged with determining eligibility for immigration benefits, who chided her erstwhile employer for "timidity" in failing to take legitimate administrative steps to reform America's broken immigration system. While her point is correct, I am furious at USCIS, not just for timidity on immigration reform but also and especially for yellowed boldness and bureaucratic chutzpah.
Don't get me wrong, the agency occasionally makes the right call, like its prompt assistance in offering extraordinary relief at times of natural disasters such as earthquakes in Japan and Haiti. Another correct move is the announcement that USCIS will focus more resources on targeting "fake immigration attorneys." In particular, the attack on individuals without law licenses who harm the vulnerable public and abuse trust by failing to understand or misusing the immigration laws is worthy and urgently needed. (Indeed, the Department of Labor should mount the same attack by eliminating from its PERM labor certification regulations the authority of unlicensed "agents" to represent employers and foreign citizens.)
What enrages me with the USCIS, however, is its toleration, coddling and empowerment of adjudicative officers in its own agency who likewise (in most instances) lack admission to any state bar and are beholden to no canons of legal ethics. These officers, in my experience and that of many lawyers, regularly abuse the vunerable public by failing to understand and -- whether wittingly or unschooledly -- misapplying one of the most complex bodies of federal law, the immigration laws. Needless to say, much of what makes life worth living is riding on a proper interpretation and application of these befuddling laws:
Knowledge of [immigration] statutes, cases and agency regulations are required . . . to evaluate both the nature and the quantum of proof required in each type of case. The legal rights and privileges involved are some of the most basic to the individual: the right to travel, the right to obtain or retain residence in this country, the right to citizenship, and liability to criminal prosecution. [Source: Unauthorized Practice Of Law In Immigration Matters]
I am not as incensed by garden-variety sloth and ineptitude, like the ever-proliferating boilerplate Request for Additional Evidence, asking for the sun, the moon and the kitchen sink, released without customization to the facts of the case, but with inadvertent inclusion of the phrase: "[Insert name of petitioner here]." No, I am enraged that a body within USCIS that purports to be a legal tribunal, the Administrative Appeals Office (AAO), would allow non-lawyers to render legal opinions that "draw . . . borders with pens that split lives like an ax."
This license to opine and thereby destroy lives is no less outrageous than the Empire State's archaic Justice of the Peace system exposed by The New York Times, where roughly three-quarters of the "jurists" were found to have no bar association membersip. The AAO reportedly employs lawyers and non-lawyers, according to comprehensive and worthy notes by Carlos HolguŪn of the Center for Human Rights & Constitutional Law (with [his bracketing]):
Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers. [While, as was claimed during the [AAO] Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]
The other leading administrative tribunals that research and opine on the immigration laws, render decisions and designate some as binding precedents are the Immigration Judges and the Board of Immigration Appeals whose members must hold an LLB or JD degree and be duly licensed to practice law, as must all Administrative Law Judges according to the Office of Personnel Management. The USCIS, however, apparently views itself immune from these requirements, since the posted job openings for positions requiring research into the immigration laws and the application of law to facts, such as Service Center Director, Overseas Adjudications Officer and Asylum Officer, do not require bar admission or legal education. Indeed, USCIS gives legal education a comparatively low value, that of a GS-9, equivalent to one year of federal service.
What prompted this tirade against the USCIS and the AAO? I won't say. The rules of professional responsibility and my duty of confidence and trust owed to specific clients prevent me from outlining the particulars. Suffice it to note that I am a jaundiced observer of AAO machinations (if you're curious, that's why I'm yellow). Notwithstanding my canary complexion, and general desensitization to specious reasoning, I just received an AAO decision that -- were it placed in Olympic competition -- would win multiple gold medals for intellectual dishonesty, disregard of precedent decisions, "refudiation" of agency guidance and overall callousness of heart, while purporting to be sensitive and heartfelt.
My fury arises not only from this mean-spirited and legally ignorant decision (which if written by a lawyer would be an embarrassment to the profession) but from the legal structure which allows it to remain protected and virtually above reproach (save for a blogger's rant), namely, legislative restraints that have placed on courts a duty of fawning deference to agency rulings of law and discretionary decisions.
As I seethe, I recall what the public has been told last year: USCIS is conducting a top to bottom review; a remarkable Transformation is imminent; and the agency will issue a proposed regulation to clarify the rules of practice before the AAO and lead to the designation of significantly more binding precedent decisions. More recently, the Inspector General of Homeland Security has warned of threats from potentially rogue employees within USCIS, and suggested numerous fixes, including a proposal that adjudicators' approved decisions be reviewed by supervisory officers before formal release. Whether or not the IG's proposal is adopted, I urge the Director of USCIS to arrange for internal attorney review of every draft decision, interpreting or applying law, written by any immigration officer not admitted to any established licensing bar.
Until then, I rage with an elevated (yellow) level of anger against the immigration machine and its (Un)Adjustment Bureau where non-lawyer "mystery men [and women] running an exceedingly specialized enterprise" participate in a sad governmental parody of yellow journalism that publishes "little or no legitimate well-researched" rulings.