By Attorney Farhad Sethna © 2016
At the very outset, let me say that this article is purely my opinion. However, my opinion is based on facts, all of which are well established and can be referenced in news media, and professional sources. These sources include the American Immigration Lawyers Association (I’m a member), as well as official government documents, court decisions, and USCIS Administrative Appeals Office decisions.
As background, the USCIS (United States Citizenship and Immigration Services) is mandated by Congress to approve immigration-related “benefits” to individuals and companies. These benefits include: work authorization, green cards, citizenship, asylum, change of statuses, investor visas, and other visa classifications that allow individuals to remain in the USA for specific purposes. It is a monopoly. It is the only agency which has the authority to grant these statuses, or change them, when appropriate.
The USCIS is part of the DHS or Department of Homeland Security. Other agencies that are involved in the regulation and enforcement of nonimmigrant and immigrant process include ICE (Immigration & Customs Enforcement) and USCBP (United States Customs & Border Patrol). These two agencies are both enforcement focused. These agencies are a part of the problem too, but not as much of a problem as the USCIS poses, because, as you will see, the USCIS oversees the vast majority of both immigrants and nonimmigrants. Immigrants come into the purview of ICE and USCBP only when they have committed some sort of immigration infraction. But for the vast majority of immigrants and nonimmigrants who are law abiding, the USCIS’ posture oftentimes poses the biggest impediment.
The USCIS seems to take the most burdensome, harshest interpretation of the law and apply it to applications. Naturally, this results in frequent “requests for evidence” (RFE’s) and needless back-and-forth between the applicant and the USCIS. Oftentimes, the applicants are individuals, or small businesses with limited resources. Naturally, when confronted with the governmental juggernaut, individuals find their resources are too limited to push back, and abandon even worthy applications. This culture of “NO” needs to be stopped.
Today’s USCIS is executing the immigration laws by internal memorandum, rather than by actual reliance on the law and regulations. The USCIS issues memoranda, adds them to its database of instructions for USCIS adjudicators, and expects those adjudicators to apply those memoranda. These memoranda are very specific, and are not subject to review and comment as are regulations. Therefore, adjudicators follow these memoranda without the benefit of having the stakeholders- including companies, non-profits, and individuals who are affected by these “rules”, to have any say in their promulgation or implementation. The biggest problem here is that these memoranda are not law or regulation. Yet the USCIS is implementing them and expecting adjudicators to follow these memoranda which lack legal authority.
These memoranda create significant hurdles for individuals and companies in obtaining and processing visas. There are in fact layer upon layer of memoranda, sometimes contradicting one another. Some aspects of one memorandum are later superseded by a later memorandum, while others are not. In this maelstrom of memoranda madness, an applicant is oftentimes stymied by adjudicators who themselves do not know which memoranda to follow, what the standards are, and whether the memoranda actually even accurately implements the law and the regulations. This whole approach of adjudication by memoranda needs to stop immediately!
Rather than bleating on about abolishing Obamacare, or abolishing the IRS, our presidential candidates this election year (2016) would do well to instead focus on outlawing the abhorrent practice of agencies legislating by memoranda.
The USCIS needs to implement procedures that are transparent, fair and not unduly burdensome. Take the latest H-1b “lottery” as an example: many more applications for H-1b visas are filed each year than the congressionally mandated 85,000 (bachelors + US master degree) cap. So the USCIS has elaborate procedures to “select” a number of applications for adjudication. The rest are returned. However, the entire process of selection, from the “first come, first served” rule, to the method of selecting the applications that will be adjudicated, is wreathed in mystery. Applicants do not know how their applications are selected or rejected. There is no “open” system to track the process of selection. As users, we are asked to trust the USCIS’ error-riddled operational program to be fair in picking and choosing applications to be adjudicated. This process has become so abhorrent and questionable that this year the AILA and AILF have filed a lawsuit against the USCIS to seek details of how the H-1b lottery process actually operates.
Even after having clear-cut laws and regulations, the USCIS is still applying the regulations inconsistently and incoherently. It fails to sometimes recognize its own regulations or the laws, and instead relies on a convoluted and inexplicable reason for issuing denials. Many of these denials are then upheld by the Administrative Appeals Office, which additionally creates an even more incoherent and incomprehensible system of precedence. Both the Administrative Appeals Office of the USCIS and to smaller extent, but nevertheless still related in a different agency- the Board of Immigration Appeals are responsible for this relatively incoherent approach. Some cases are decided favorably, while others, with the same fact pattern are not. In some cases the USCIS follows precedent, while in other cases it does not. In some cases, the USCIS confuses the elements and requirements of one visa classification with another, demanding additional evidence when none is necessary. In other cases, the BIA, through convoluted, twisted reasoning, somehow finds ways to uphold bad USCIS or immigration court decisions. And when the AAO or the BIA issue decisions, it is often months or even years after the appeal was filed – making the application moot. And that’s on top of the huge fees the USCIS charges, which are slated to increase later this summer (see related article on this website).
The USCIS top brass tout “entrepreneurship, innovation, small business”, and other such buzzwords- especially in this election year- as fundamentals of the United States’ economy, which helps it to grow and create jobs. However, all of this is simply political hot air. While the administration claims that alien entrepreneurs are a life-blood to the US economy and should be encouraged, the USCIS goes about in direct opposition to that political statement. Instead of helping students with dreams achieve that reality through granting employment-based authorizations or work visas for self-sponsoring entrepreneurs, the USCIS categorically denies that approach. Instead of encouraging entrepreneurs to secure capital, start up businesses and create jobs in the USA, the USCIS closes the door to self-employment. Instead of allowing worthy small companies immigrate qualified workers through L-1A, L-1B, E-1 or E-2 workers, the USCIS sets up hurdles to these visas by questioning entrepreneurship and specialized knowledge.
In short, the USCIS is doing a fantastic job of curbing entrepreneurship and innovation in the United States.
These are some of the issues that a new President and hopefully a new Congress need to consider in revamping the USCIS. It is not just laws, regulations, and the resulting “memoranda madness”. It is the entire culture of “no” that needs to be slashed, uprooted, and entirely replaced.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.