Posted by Angelo A. Paparelli on September 24, 2009

Follow the Immigration Money

History teaches us a tried-and-true, gumshoe-inquisitor's method of uncovering scandal. As memorialized in the 1976 film, All the President's Men, former FBI agent, Mark Felt, unmasked as Deep Throat of Watergate fame, explained the approach to Washington Post reporter Bob Woodward:

Deep Throat: Follow the money.

Bob Woodward: What do you mean? Where?

Deep Throat: Oh, I can't tell you that.

Bob Woodward: But you could tell me that.

Deep Throat: No, I have to do this my way. You tell me what you know, and I'll confirm. I'll keep you in the right direction if I can, but that's all. Just ... follow the money.

Congress, or better yet, investigative journalists and documentary filmmakers, should take a cue from Deep Throat when it comes to pulling the covers off the scandal of immigration user fees. Two years ago U.S. Citizenship and Immigration Services (USCIS) raised filing fees on average 66%. Yesterday, the new USCIS Director, Alejandro Mayorkas, told reporters that the agency is considering another round of fee increases as well as budget cuts, although the 2007 increase was supposed to improve service on a consistent basis -- and that hasn't happened. The USCIS Ombudsman, quoting the General Accounting Office (GAO), at page 19 in the Ombuds' 2009 annual report, recognized the pickle the agency is in when a plummeting economy put USCIS filing-fee revenue into freefall:

Challenges with USCIS Fee Funding Structure

USCIS, which is dependent on fees to finance its operations, is impacted by decreases in application/petition receipts, as during the reporting period. In discussing revenue stability, the GAO notes that “a decrease in application volume could significantly affect operations when an agency receives nearly all of its funding from application fees.” [Footnotes omitted.]

But to swallow the "bad-economy" explanation is to take a sucker punch. There are many reasons why USCIS can't balance its budget, aside from the structural infeasibility of relying almost completely on user fees. To name but a few:

  • The USCIS unit, Fraud Detection and National Security (FDNS), has taken over the investigations functions of another bureau of Homeland Security, Immigration and Customs Enforcement (ICE). FDNS has outsourced ICE's investigations functions to private detective agencies whose investigators are roaming the country to investigate nonimmigrant worker petitions. According to a January 2009 GAO report (p. 19), FDNS ran up a $99,000,000 tab in FY-2008 and FY-2009. Why should law-abiding people and businesses who sponsor foreign citizens pay for the costs of agency mission creep when another agency (ICE) is charged with interior immigration enforcement? What benefit (the putative reason for user fees) do they get over and above the benefit to all Americans of interior immigration law enforcement?
  • The Adjudicators at USCIS ignore legal requirements, fail to consider the evidence submitted, apply a higher-than-permitted burden of proof, and routinely insist on reams of burdensome and unnecessary documents in requests for evidence(RFEs). How much of the $1,134,000,000 spent in making decisions on immigration-benefits requests in FY-2008 and FY-2009 (ibid) went to illegal RFEs?
  • USCIS "Modernization" and "Transformation" initiatives have been inching forward and backward for several years with little to show for the effort beyond a spiffy new USCIS website. Where did that money go?

So unless a gullible public and stakeholder community want to swallow hard the agency's crocodile tears, perhaps some patriot out there should embrace Deep Throat's timeless advice: "Follow the money."

Posted by Angelo A. Paparelli on September 18, 2009

The Founder's Visa - A Good Idea in the Haystack of Bad Immigration News

The immigration news lately for the Department of Homeland Security has been decidedly downbeat:
  • The GAO issues a scathing report on the DHS border fence initiative.
  • DHS settles a complaint that attacked longstanding and deplorable immigration detention conditions in the basement of the Los Angeles federal building.
  • The Chief Justice Earl Warren Institute on Race,Ethnicity & Diversity at U.C. Berkeley Law School releases a damning critique of Hispanic racial profiling in the Criminal Alien Program managed by DHS's Immigration and Customs Enforcement.
With all this bad news, DHS may have overlooked a great proposal that the Department should support if it wants to turn the tide of bad PR. Paul Graham, a partner in a venture capital firm that provides seed money to start-up companies, recommends that Congress establish a "Founder's Visa (FV)." Graham suggests that the government grant 10,000 FV green cards per year to foreign nationals who provide a credible and fully-vetted business plan outlining the creation of a new business. FV green card holders would be prohibited from working for someone else; hence, no jobs for U.S. workers would be endangered. Rather, high-value jobs would be spawned. The best thing for DHS under the FV proposal would be that U.S. Citizenship and Immigration Services adjudicators need not pull their hair out trying to decide whether a foreign entrepreneur's proposed business plan made business sense. (The USCIS's ability to parse the ways of business in the real world has never been particularly good. Witness the backhanded body blow it applied recently to multinational managers and executives and its history of failed rulemaking and even poorer adjudication of the EB-5 employment-creation investor visa.) Instead, Graham suggests the vetting of proposed FV business plans be done outside government by a venture-capital accreditation body, much like the organizations that grant accreditation to universities and schools that are allowed to issue student visas. America's New Immigrant Entrepreneurs are already helping to create jobs for U.S. workers through innovation. USCIS already has its hands full in readying itself for the onslaught of mandatory use of E-Verify by federal contractors, fanning out its outsourced and home-grown army of fraud-detection officers to conduct site visits of America's small and large employers, dealing with a broken budget that can't be fully supported by user fees, and preparing for the possibility of comprehensive immigration reform (CIR) legislation. DHS should support Graham's green card proposal for verifiable entrepreneurs. If a venture-capital accreditation board can reduce the burden of adjudication on an already strapped USCIS, promote immigration's and the nation's transformation and create American jobs, then the FV green card is well-worth including in the CIR push this year and next. It makes loads more sense than a Diversity Lottery for green cards which relies on casino-style randomness as the basis to sprinkle green cards on a lucky few. Wise up DHS. This is a good PR opportunity to distract the public from your spate of bad press. Give Senator Schumer and Representative Lofgren a call, or urge the President to do it. --------
Posted by Angelo A. Paparelli on September 10, 2009

USCIS Puts Silent Kibosh on Successorship in Interest for High-Achieving Immigrants

I've railed repeatedly in this blog about the abhorrent tendency of federal immigration agencies to make sweeping changes in law and procedure merely by issuing easily-repudiated press releases and policy memoranda. A recent policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) illustrates just how much damage can ensue when bureaucrats pass rules without the beneficial vetting required by statute and presidential orders.

The Administrative Procedure Act mandates that the public be given notice of proposed rulemaking and an opportunity to comment. Presidential Executive Order 12291 requires formal agency rulemaking in order "to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations." EO 12291 also defines "[r]egulation" or "rule" to mean "an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the procedure or practice requirements of an agency."

Exhibit A in opposition to rulemaking by unexamined bureaucratic missive is an August 6, 2009 Policy Memorandum by Donald Neufeld, Acting Associate Director, Operations for USCIS. Mr. Neufeld's memorandum carries an unassuming, if soporific, title: "Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions." Its purpose is benign and commendable -- to modernize the interpretation of continuing green-card eligibility for employees of businesses involved in corporate reorganizations so that surviving entities need not re-start the years-long immigrant visa process from scratch. Yet by failing to give the public and the stakeholder community an opportunity to enlighten the agency on the legal and real-world implications of its contemplated change, USCIS creates mischief and mishigas for itself and for the highest of high-achievers in the immigration pantheon.

By way of explanation, the high achievers to which I refer are outstanding researchers and professors and executives and managers of multinational businesses. These two "Priority Worker" green-card categories are considered by Congress as so important to the nation that the usual protections of the U.S. labor force, the labor market test for worker availability known as PERM labor certification, do not apply to them.

So how does Mr. Neufeld's memorandum hurt these high achievers? It says that unlike the employers of foreign citizens who have been granted labor certifications, the employers of high achievers (colleges, universities and large and small companies with American and foreign operations) are not allowed to benefit from the successorship-in-interest principle. This means that they must go back to the end of the quota queue and apply all over again. The result: The high achievers will likely be required to wait several years longer to get their permanent resident status, and some may be disqualified by virtue of the passage of time and the changed circumstances involved in the employing organization's restructuring.

The Neufeld memorandum is not only arbitrary and unfair in granting special benefits when "stuff happens" to one group and denying them to similarly situated others. The memorandum flies in the face of 25 years of settled agency practice which (numerous immigration-lawyer colleagues can attest), has allowed successorship-in-interest to benefit these high-achieving denizens of academia and Wall Street. Be assured, however, that the talented Masters of the Universe and the Professors Kingsfield seeking permanent residence in this country (and their American employers and lawyers) will not go quietly into the night of quota hell.

The USCIS must stop embarrassing itself by perpetuating this seemingly expedient but ultimately foolish and illegal behavior. It must create rules the old fashioned way that Congress and the President require, and let the public be heard.

Posted by Angelo A. Paparelli on September 03, 2009

Channeling the Immigration Spirits

Rarely do we outsiders hear the voice of government authority utter candid and intensely-felt views, unfiltered by in-house spinmeisters. Surprisingly, my recent post, "Ignorance of Immigration Reality," evoked just that. It unleashed a nether-worldly response from the sass-talking spirit of an anonymous immigration official, "Federale." Apparently, not since Mary Todd Lincoln conducted séances in the White House has a disembodied voice emanated so transcendentally while situated on government property.

Here, then, are Federale's steamy spewings on what he sees as the real dysfunctions of our nation's immigration system (with my numbering inserted in brackets to make for conveniently cross-referenced retorts):

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

[2] 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.

[3] Perhaps that is just a lesson to have a good immigration attorney who knows the details.

[4] But in any event, the R [religious worker] 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.

[5] Fortuneately [sic]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.

[6] 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.

[1] Federale, you caught me in a mistake; I confess. District Adjudications Officers (DAOs) are now known as Immigration Services Officers (ISOs). Though I challenge you to explain how the term "Services" can be accurately applied to the lawless shenanigans you attribute in your comment to the ISOs.

[2] Yes, "a violation is a violation," except when its committed by the CAOs, ISOs and their superiors who flout Congressional will. You folks do this by (a) creating new law out of unchanged legislative text, and (b) devising extreme, sophistic interpretations that support your personal policy judgments to deny immigration benefits to people and businesses who in earlier decades, on identical facts, would have been approved. In short, the government should also play by the immigration rules.

[3] At last, we agree on something. As your colleague, INS Spokeswoman Karen Kraushaar, accurately observed: “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” — (quoted in The Washington Post, April 24, 2001, in an article entitled “Md. [Maryland] Family Ensnared in Immigration Maze - After Changes in Law, Couple Faces Deportation”).

[4] To be sure, visa abuse is wrong and should be punished; it cheats the law-abiding who play by the rules and generates a debilitating disrespect for the rule of law. You apparently forget, however, that the First Amendment to the Constitution protects freedom of religion, requires separation of church and state, and prohibits the establishment of religion. It also creates Legislative and Executive Branches of government which together have produced legislation, the Religious Freedom Restoration Act (RFRA), which puts the burden on the government to demonstrate a compelling governmental interest in denying a religious worker an immigration benefit, and to show that the denial is the least burdensome way to enforce the government’s immigration policies.

Your defense of the abusive practice of denying cases on so-called "technical violations" can never be reconciled with these constitutional provisions and the RFRA. Moreover, your spirited reply conveniently ignored the fact noted in my post that poor Pastor Neufeld lost the companionship of his wife and kids, even though your agency concluded that his case for religious-worker designation was legitimate and granted him his green card. How, then, did the denial of his family's green cards fight religious-worker visa fraud?

[5] I might be inclined to give you some leeway in applying the Al Capone "no-spitting-on-the-sidewalk" mode of enforcement if you could support your claim with specific examples in which a CAO or ISO has "saved the U.S. many a time when an Al Queda sleeper or sympathizer has tried to file a petition." As the saying goes, "I'm from Missouri. Show me." Frankly, I think you're blowing smoke.

[6] Yes, I didn't address your gripe about "hard [adjudication] quotas". (Since you've repeated it so often, I'm beginning to wonder if you're a union rep for the local CAO or ISO bargaining unit.) In any case, I don't like immigration quotas, whether they're imposed on border patrol officers or used to delay deserving foreign citizens in gaining the chance to contribute to the betterment of our country. Unrealistic adjudication quotas are wrong. Officers need adequate time to decide cases. Their job, as I've noted, is not easy. The challenge for the agency, however, is more than internal production quotas; rather it's an outdated business model. If there's "a built in bias for approvals," stakeholders are not seeing it.

* * *

So, Federale, it's time for you to come out of your sarcophagus. If you are truly so exercised about the immigration dysfunctions you see, then exorcize yourself. Let's sit face to face at a meeting with the USCIS Ombudsman and the new USCIS Director (a seemingly earnest and honorable gentleman), and thrash out our differences for the sake of a better immigration system. I'm waiting for the invitation to put this meeting on my calendar.

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