Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

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.

Raymond Kurzweil, a scientist and futurist, predicts a new epoch he calls the "Singularity." This is the point along the evolutionary path where the line between human beings and technology is crossed, where quasi-human/quasi-machine beings possess far more brainpower and longevity than mere mortals. As Kurzweil puts it:

One can make a strong case that [the Singularity is] actually the cutting edge of the evolution of intelligence in general, because there's no indication that it's occurred anywhere else. To me that is what human civilization is all about. It is part of our destiny and part of the destiny of evolution to continue to progress ever faster, and to grow the power of intelligence exponentially.To contemplate stopping that — to think human beings are fine the way they are — is a misplaced fond remembrance of what human beings used to be. What human beings are is a species that has undergone a cultural and technological evolution, and it's the nature of evolution that it accelerates, and that its powers grow exponentially, and that's what we're talking about. The next stage of this will be to amplify our own intellectual powers with the results of our technology.

In matters of immigration, the Singularity is approaching more quickly than we lowly humans can comfortably tolerate and outpacing the capability of lawyers and policy wonks to understand and harness it for good rather than ill. I can cite many examples -- the Labor Department's new iCert portal and Homeland Security's E-Verify database, to name just two -- both portending an ominous new era of secret data mining and invasions of privacy. As scary as these technologies are, they are noisome gnats in comparison to the threats posed by the State Department's new electronic nonimmigrant visa application required for use at several consular posts -- the DS-160.

To hear State tell the Office of Management and Budget (OMB) in its Supporting Statement, the DS-160 is a marvel of efficiency and simplicity, and a boon to visa applicants worldwide:

The Department has developed an application process that will allow respondents [visa applicants] to electronically submit their applications to the Department. . . .The applicant will be asked to provide answers to a series of standardized questions. Depending on the applicant’s answers to these standard questions, the applicant will be asked specific questions concerning their application. For example, all applicants are asked “What is the purpose of your trip to the United States?” If the applicant answers, “fiancé” the applicant will then be directed to answer questions specific to nonimmigrants that are coming to the United States to marry U.S. citizens. Or, if the applicant answers “student”, the applicant will be asked questions pertaining to his or her education plans. Once the application is completed and the applicant has verified the answers provided, the applicant will electronically sign and submit the application to the Department in electronic form. The applicant may print a copy of the application for record keeping purposes, but no paper copy of the application is submitted to the Department. The applicant will present to the Department in paper an application confirmation page which will contain a record locater in the form of a 2-D bar code. The consular officer will scan the bar code to electronically retrieve the application from the computer database. The electronic form will ensure that consular officers have all the necessary information to process the application and will significantly reduce the need for additional paperwork during the applicant’s interview. The electronic submission of the application to the Department will allow for the information to be reviewed before the time of an interview.

The problem with the DS-160, however, is that the visa applicant (and his/her lawyer, family member or sponsoring employer) cannot see the questions to be answered in advance or even print out a copy of all or part of the form before sitting down to provide answers, given under penalty of perjury, that will determine whether the applicant's personal version of the American Dream will ever be realized.

In my view, State snookered OMB in approving the release of the DS-160 under the Paperwork Reduction Act (PRA) without providing the public with access to a complete copy of the form and all the questions posed. The purpose of the PRA is to reduce the burden of completing government forms; it is not to allow government agencies to force visa applicants and their stakeholders to play "whack a mole" or "peek a boo" as different answers pop up unexpectedly.

Before the Singularity, Hamlet's exclamation eloquently celebrated humankind's evolution:

What a piece of work is a man! How noble in reason, how infinite in faculties, in form and moving how express and admirable, in action how like an angel, in apprehension how like a god! The beauty of the world, the paragon of animals . . .

After the atrocity of the DS-160, however, as State tramples on legal rights and human sensibilities, the rest of Hamlet's phrase is particularly apt, for this electronic Singular Sensation turns humans into the "quintessence of dust."