Got Immigration? The World’s Best Damn Blog About U.S. Immigration

At a recent informational program, DHS outlined and explained the three types of site visits it currently conducts through USCIS’s Fraud Detection and National Security unit (“FDNS” for short):

First, theres’s the Risk Assessment Program Fraud Study, which applies to any type of benefit program, including family and employment-based benefits.  Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.  This “study” is a joint effort between USCIS and ICE.

Second, there are targeted site visits, which take place when fraud is suspected in a specific case and consist of a visit to ask questions.  Advance notice, including notice to counsel, is supposed to be provided.

Third, there are administrative site visits, which relate to religious worker and H-1B petitions.  These visits are generally conducted by contractors who know nothing of immigration law, and should pretty much consist of the same questions, primarily reaching the issues of whether there’s really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition.  Every first-time religious worker petitioner gets a visit, and H-1B visits are randomly chosen.

Targeted site visits have always been around; if fraud is suspected, USCIS certainly has the right to investigate.  I’ve also written about administrative site visits before, specifically about the FDNS’s nefarious H-1B site visits and USCIS’s specious legal reasoning behind them.  The Risk Assessment Program Fraud Study, though, is something new.  Apparently, USCIS and ICE are now investing their extremely limited time and resources investigating already-approved and completely innocuous cases, solely to creare “potential fraud profiles.”  I can’t really see how this is a good use of taxpayer money. USCIS and ICE are two agencies that should have absolutely no problem identifying fraud.  As the former INS and now as USCIS and ICE,  these agencies have decades of experience dealing with fraud, and should be perfectly able to tell when various aspects of a petition or application fail the smell test.  I am as much for rooting out fraud as the next attorney, but I don’t think it’s asking too much for the Immigration Service to identify fraud as it arises, and not go looking for it in completely new places.  Such a strategy smacks of paranoia and is a utter waste of time and energy, especially in light of the crapulent customer service that both agencies are currently providing.  I hope that the power-that-be prevent the FDNS from wasting any more taxpayer money on this useless program.

I know, I’ve only posted once this whole week.  It’s been a busy week, but I’ll be back on Monday with more stories from the world of immigration.  I’m going to a wedding Puerto Rico tomorrow, and won’t be back until Sunday – and no, I’m not bringing my laptop.  So sit tight, and check back in on Monday November 16th.

The Department of Labor released its Quarterly Performance Report today, covering April 2009-June 2009.  According to the DOL, PERM processing rose to completion of 17% of cases within six months of filing.  Wait…what was that?  PERM processing rose to a completion rate of 17%??  The DOL’s snail-pace when it comes to PERM is turning the Labor Certification process into a laughing stock.  It’s very depressing to read the DOL’s Performance Report.  The rate of PERM completion within six months of filing was 94% in the quarter ending June 30, 2008.  A year later, that rate is RISING to 17%.  Between September and December 2008, the rate of PERM completions fell by about 50%, and it fell to a low of 11% in March 2009.  The stated reason for this tanking – “The overall decrease in this measure from one year ago is due to the impact of increasing integrity activities in light of the declining economy and continued filings for positions where there are US workers. (Increased integrity activities are being implemented to protect U.S. workers and satisfy statutory responsibilities and require additional processing time.)”  Translation of DOL-speak to English – “the economy stinks, fewer PERMs are being filed, and, since we now have more time, and are looking out for our own jobs too, we’ll pick apart each PERM to see if the job offer is bona fide.”  I don’t speak DOL fluently, but I’m pretty sure that’s an accurate translation.  The DOL can justify its paltry 17% completion rate however it wants; the sad reality is that skilled foreign workers are going to leave the U.S. in droves if they’re indefinitely stuck in PERM-limbo.  President Obama needs to light a fire under the DOL’s proverbial buttox if we want to remain competitive in a globalized world where skilled workers are a prime commodity.  Anything less will cause America to go the way of other great nations that failed to grasp how rapidly the world can change.

I’m reading Thomas Barnett’s book “Great Powers” right now, which deals with America’s place in the post-9/11 globalized world order.  In a chapter tracing the history of American-style globalization, Barnett discusses the Homestead Act, a law that gave applicants freehold title to undeveloped land.  President Abraham Lincoln signed the Homestead Act into law in 1862, possibly the darkest year of the Civil War.  The Homestead Act gave anyone title to lands as long as they filed an application, improved the land, and filed for a deed of title afterwards.  An applicant could obtain up to 160 acres in this fashion.  Barnett argues (citing historian Heather Cox Richardson) that the Homestead Act was key in helping America heal the wounds of the Civil War, providing America with an economic model that “unified its citizens’ collective pursuit of individual happiness across a collection of far-flung regions and ‘sections.’”  The Homestead Act also helped unify the North, South, and West, and increased the nation’s food supply at a time of low output.  Simply put, the Homestead Act was an important component of post-Civil War reconstruction and had a profound effect on the nation’s development through the 19th and early 20th centuries.

Why am I talking about the Civil War in an immigration blog?  I found it fascinating that the Homestead Act applied to citizens and non-citizens alike.  Anyone could apply for a land grant, irrespective of citizenship, as long as the non-citizen applicant “expressed a desire to become a citizen eventually.”  The result of this provision was that thousands of European immigrants acquired and developed land in the West, transforming the continental United States into much the way it looks today.  The United States had an open-door immigration policy in the 1860s; gradually, various classes of immigrants became “inadmissible” in the 1870s and later, a quota system was instituted in the 1920s, and the nation’s current immigration regime largely developed in the 1950s and 60s.  I completely do not believe in an open-door immigration policy for America of the 21st century, but it’s fascinating to see what just such a policy did for America of the 19th century.  There’s value in taking a step back from today’s uber-charged immigration debate and objectively evaluating whether a more liberal immigration regime can similarly transform the country again.  In many ways, our current immigration system is a product of an outdated era politically, economically, socially, and technologically.  Immigration can be a potent tool for helping America maintain a competitive advantage in a globalized world, and should be treated exactly as such – and not as a social ill that needs to be further restricted or eliminated.  Just something to think about for the weekend.

I’ve notice that USCIS’s Administrative Appeals Office (AAO) has overturned two I-140 denials recently, which is fairly unusual.  The Nebraska Service Center denied both I-140s because the applicants for the jobs in question – software engineer and market research analyst – lacked education in those specific fields.  The AAO held that a specific field of study is not required for either of these positions; in other words, a Bachelors degree or a Masters degree is sufficient, on its own, to qualify the applicant for the positions at issue here.  I find these two decisions especially interesting because they show that (1) the AAO actually does, on occasion, overturn a USCIS Service Center decision, (2) the underlying NSC decisions seem clearly erroneous, making me wonder whether NSC officers are routinely fed crack as part of their job duties, and (3) the time between filing the appeal and getting an answer is absolutely ridiculous, and getting worse.  The NSC denied both of these I-140s in 2007, and the petitioners are just getting answers at the end of 2009.  What kind of dysfunctional system allows people to remain in limbo for such a long time?  It’s worth mentioning that a pending appeal confers no legal status on beneficiaries located in the U.S.; they have to maintain independent nonimmigrant status while their appeals are pending, or they will fall out of status and become ineligible for certain immigration benefits, including, possibly, permanent residence – the point of the appeal in the first place.  Given the low rate of AAO appeals granted, appealing while in the U.S. is a major gamble that might not pay off for years, if ever.  My solution: even if it’s the petitioner’s appeal, let the appeal confer some sort of status on the beneficiary as well, so he or she still qualifies for adjustment down the road.  That’s the least the government can do if it has to take such an insanely long time adjudicating I-140 appeals.

I’ve often railed against ICE’s detention system on this blog.  An article today in the The New York Times nicely illustrates why this system has to be changed in as expeditious a manner as possible.  The Varick Street Detention Facility is located in Greenwich Village, an otherwise enviable location in Manhattan.  An estimated 11,000 men are imprisoned there every year as a result of any number of immigration problems.  The Times’ article explains how one of the inmates, an asylum-seeker from Romania, sent a letter to the New York City Bar Association complaining about conditions in the facility.  In response, the Bar Association sent a team of volunteer attorneys to the facility to evaluate inmates for potential relief from removal, a move apparently supported by ICE officials and other members of the Obama Administration familiar with this case.  One party was not so happy, though – the Alaskan tribal company that won the contract to administer the Varick Street Detention Facility.  The article states that the facility’s warden “balked” at a suggestion to forward attorneys’ letters to inmates that had been moved, essentially saying that doing so would be against the intersts of the facility’s private stakeholders.

Two things struck me about this article.  First, it’s a compelling illustration of why moving detainees from facility to facility is a clear violation of their due process rights.  Attorneys do not want to take cases involving a client that might be in Georgia one day, New York the next, and in New Jersey next week.  Worse yet, attorneys brave enough to take on such cases can’t properly prepare a defense if they can’t find their clients, much less meet with them.  ICE has always said that there is no mal-intent in moving inmates, that it’s simply a matter of matching people with available beds.  Fine – I accept ICE’s explanation, but it doesn’t change the fact that such a practice violates a detainee’s due process rights under the U.S. Constitution.  Second, the article nicely shows how private interests play a role in the administration of justice at these facilities to the detriment of inmates - in this case, the Warden of the Varick Street Detention Center refusing to forward attorneys’ letters to inmates because it might undercut the private contractor’s bottom line.  A federal contractor for a detention facility should only administer the facility, and not have any say in decisions about access to counsel.  If anything, ICE and DHS need to set firm guidelines about how and when inmates can access outside counsel, something they’re apparently in the midst of doing system-wide but haven’t finalized yet.  This might be a whopping generalization, but if an Alaskan tribe is worried about its bottom line, large prison services companies will be that much more dollar-obsessed, and cannot be relied upon to ensure adequate access to legal advice and representation.

Despite DHS’s best intentions, nothing has really changed in the immigration detention system.  I look forward to blogging about any indications to the contrary in the months to come.