Trying Not to Sip the Immigration Kool-Aid
The Office of Ombudsman (Ombudsman) to U.S. Citizenship and Immigration Services (USCIS) has just released an outstanding 2009 Annual Report to Congress. The culmination of an especially ambitious and successful year of several spot-on recommendations, the Report focuses a laser beam on the many shortfalls in USCIS's performance.
Among the Report's many worthy insights, the Ombudsman cites numerous customer-service lapses:
- USCIS has been forced to fund day-to-day operations through the ebb and flow of filing fees rather than by Congressionally appropriated sums (this includes the $491 million dollar contract with IBM now funded solely by Premium Processing fees to pay for the agency's electronic "Transformation" initiatives which will not begin to bear fruit until February, 2011 and may yet "incur substantial additional costs").
- USCIS has not moved to enable the scanning of paper documents or the online payment of filing fees.
- USCIS has endorsed the National Customer Service Center (NCSC) adoption of a call-center scripting approach that relies on canned and unhelpful responses (Tier 1) and a rotating crew of USCIS Information Officers who lack access to agency records (Tier 2) to address egregious delays and deficiencies in USCIS's performance.
- USCIS has not met its self-imposed targets for reductions in average processing times for all categories of petitions and applications for immigration benefits.
The work of the Ombudsman is a godsend, but not a deus ex machina. With altogether too much toleration and not enough outrage for my taste, the Ombudsman's report restates longstanding USCIS problems but does not condemn the lack of significant forward movement. Why doesn't the Report seriously challenge:
- The flawed premises and exaggerated conclusions of the agency's H-1B fraud and abuse survey?
- The fact that the second-largest category of new hires involved "fraud and security positions" during the first stage of expanded USCIS hiring" funded by user fees that should be earmarked for adjudication?
- The manifest lack of accountability of adjudicators who flout policy memoranda issued by USCIS? or
- The USCIS assertion of legitimacy and reasonableness that the precious right of employment authorization shoul ordinarily take 90 days to grant?
- The lack of meaningful appeal rights and right to legal counsel for all parties in interest (including the foreign citizen applicants) in all categories of immigration-benefits requests?
According to a knowledgeable Congressional insider who was present at its creation, the Office of Ombudsman -- beyond its stated statutory mission of "assist[ing] individuals and employers in resolving problems" with USCIS -- was intended to take the burden of immigration-related constituent services off the backs of the Senators' and Representatives' staffs. The problem with offloading constituent complaints to the Ombudsman is that it takes pressure off Congress to hold USCIS accountable. Why hold an oversight committee hearing (Members of Congress might say candidly to their visages in the mirror) when we can read and forget each annual Ombudsman's report?
The time for tolerance is past due. Righteous indignation is needed now. Congress must bite the bullet and fund USCIS on a long-term basis with appropriated funds. It should also expand the Ombudsman's authority so that it is "Tri-Bureau" in scope, and covers all three agencies (USCIS, ICE and CBP) that together interpret and apply the immigration laws within Homeland Security. Indeed, if the Obama Administration and Congress are serious about the proper functioning of the federal immigration system, they would also create Offices of the Ombudsman for the Departments of Labor and State, and place a "Tri-Department" Ombudsman on top, so that stakeholders really have a "seat at the table" for comprehensive immigration reform.
Meantime, the USCIS Ombudsman should stop sipping the agency's Kool-Aid. It should conduct a full financial audit of USCIS's application of user fees for purposes within and outside of the adjudication-only mandate of the Homeland Security Act. It should be directly involved in all aspects of the Transformation program, including contract administration. It should abide by Immigration and Nationality Act § 452 which confers on the Ombudsman "the responsibility and authority . . . to appoint local ombudsmen and make available at least 1 such ombudsman for each State [emphasis added]."
Don't get me wrong. The Ombudsman is performing well a critically important role. But there is simply too much dysfunction in America's broken immigration system merely to compliment the Ombudsman for a solid, if temperate, report.
The heavy lifting on comprehensive immigration reform involves far more than merely enhanced border protection, a path to legal status for the undocumented and an orderly system for future worker flows. It will require a complete overhaul of the government agencies that now mismanage a slew of immigration programs that, if optimally administered, could and should be the rejuvenating lifeblood of our nation.