USCIS Adjudications Being Challenged Again

Thursday, February 23, 2012 - 16:18

As employers begin to gear up for the fiscal year 2013 H-1B nonimmigrant visa filing season (which begins April 1, 2012), Congress and U.S. Citizenship and Immigration Services are engaged in a renewed battle over whether the agency appropriately scrutinizes immigration filings. On February 15, the Immigration Subcommittee of the House Committee on the Judiciary held a hearing on “safeguarding the integrity” of the USCIS immigration benefits adjudication process. To the business community, the hearing was a stark reminder of the divisions between immigration proponents and restrictionists. Witnesses offered their views of whether there is a “culture of no” or a “get to yes” ethos within USCIS.

The House hearing was prompted by a recent Department of Homeland Security Inspector General report, prepared at the behest of longtime immigration critic Sen. Charles Grassley (R-IA), which alleged that USCIS officers feel pressured by senior officials and outside attorneys to approve cases, at the risk of national security and the integrity of U.S. immigration law. The report also asserted that the immigration agency is being “run by private attorneys.”

The IG report was released in January to widespread publicity but was roundly criticized in the immigration community, which pointed out that the IG’s conclusions were based on an infinitesimal sampling of opinion from a self-selected group of survey respondents within the agency. Rep. Zoe Lofgren (D-CA), ranking member of the Subcommittee, called the report “amateurish.” Only a very small percentage of the agency’s total adjudications staff participated in the study and of that group, only a fraction – 63 employees – suggested they had felt pressure to approve cases at some (unspecified) point in their careers. This contrasts with the “more than 18,000 USCIS employees and contractors [who] process benefit requests.”

USCIS’s own statistics called the IG report into question as well. Just weeks after the IG report was made public, the National Foundation for American Policy, an immigration think tank, issued its own analysis of official USCIs statistics on the rate of petition denials for H-1B and L-1 nonimmigrant visas. Those statistics paint a picture of soaring denial rates for the most important nonimmigrant employment visas – a far different story from the conclusions of the IG.  For example, the rate of denial of L-1B visas for specialist intracompany transferees more than tripled in the last four years, and the rate of cases receiving a government request for more proof nearly quadrupled. Elsewhere, the agency has disclosed that, of the thousands of cases reviewed by USCIS’s Fraud Detection and National Security Directorate in a given year, only a small fraction – less than 200 in fiscal 2010 – are referred for formal fraud investigations.

Even congressional witnesses testifying in support of the IG contradicted the allegations of fraud and undue influence. Acting DHS Inspector General Charles K. Edwards, the author of the damning report, himself admitted that no conspicuous fraud was discovered in immigration adjudications. Mark Whetstone, president of the USCIS officers’ union, disputed the claim of a “culture of yes” in the agency and argued that outside attorneys do not influence the way agency adjudicators decide cases, though they might advocate for a decision to be reviewed.

Still, despite the hard numbers showing skyrocketing denials and the admissions of government officials, the debate continues. What does this tug-of-war mean for businesses? Unfortunately, not much good. As our economy slowly recovers, there is an ever greater need for the competitive edge that highly skilled workers, regardless of their nationality, bring to our nation. But employers have been plagued in recent months by ever stricter USCIS policies and increasing requests for proof of entitlement to immigration benefits (with all the associated costs and delays of responding) – an unremittingly tough path to desperately needed resources.

Though USCIS Director Alejandro Mayorkas appears willing to work with U.S. businesses to achieve workable processes and policies, he is clearly stymied by restrictionists in Congress, who for years have made allegations of widespread immigration fraud with impunity, but without much factual basis. Moreover, there is every indication that existing enforcement resources, tools and mechanisms can be more effectively applied against the true fraud perpetrators without burdening legitimate immigration applicants, who make up the vast majority of filers. Don’t our businesses and our economy deserve better from Congress than another round of vague fraud allegations and fingerpointing? As U.S. employers prepare their workforce planning for the next fiscal year and get ready to submit their fee-intensive H-1B petitions, it is time for Congress and USCIS to get past the histrionics over “fraud” and focus on long-overdue improvements to our business immigration system.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.comNancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.