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Office of the Inspector General’s Report: a Fair Examination of USCIS Processes?

January 14, 2012

On January 5, 2012, the Office of the Inspector General (OIG) for the Department of Homeland Security (DHS) issued a nearly 60-page report entitled “The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers.” 5 key recommendations were highlighted in the one page “Spotlight.”

The OIG report does not purport to be a representative sample as it surely is not. As stated on page 7 of the report, “Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs [Immigration Services Officers] across the United States.” Of the more than 18,000 USCIS employees and contractors, the OIG inspectors interviewed 147 managers and staff and received 256 responses to an online survey. As other commentators have pointed out, assuming the numbers reported represent 403 different employees (meaning interviewees did not also respond to the online survey), the OIG’s report is based on data from a 2% unrepresentative sample of the USCIS workforce.

The part of the report likely to raise the blood pressure of most immigration attorneys begins with the section on page 17 entitled “Inappropriate Pressure on the Adjudications Process Must Be Avoided.” The report notes that an ISO reviewing a case has only 5 options:

  1. Issue a letter to request specific additional evidence,
  2. Write a fraud referral to transfer the case to the fraud unit,
  3. Issue a Notice of Intent to Deny, with an explanation,
  4. Deny the application and write a detailed justification, or
  5. Approve the case.

The report than cites to a survey of the 2% of USCIS employees on which the OIG report is based and indicates that 51.6% of this 2% group “said that the USCIS policy is too heavily weighted toward promoting immigration.” Note that this response is in the context of production pressures and the perception that ISOs are pressured to approve cases. In addition, the report details an informal policy of taking a case away from an ISO who is unlikely to approve the case and reassigning the case to an officer “’who the supervisor knows will approve the case.’”

One of the most concerning issues for immigration attorneys are the RFEs (Requests for Evidence). The OIG report details the recent history of RFE complaints, noting that, “In 2008 and 2009, the [USCIS] Ombudsman determined that RFEs place burdens on benefit requesters and increase costs for USCIS. In 2010, the Ombudsman determined that RFEs are not uniform, are duplicative, and ask for information that petitioners are not required to provide.” Many immigration practitioners would heartily agree with this statement. As with the section of the report on adjudications, of the 2% group, “[m]any ISOs said that USCIS leans too heavily toward limiting RFEs and increasing approvals.”

The report then details pressure reported by the 2% group in the adjudication of O visa petitions. In the middle of the report, on page 30 is a reported statement from the 2% group that “the American Immigration Lawyers Association ‘owns’ USCIS.” This statement, of course, virtually guaranteed a response by the current head of AILA, Eleanor Pelta.

There is no question that some petitioners apply for benefits to which they are not entitled or make claims based on fraud. There is also no question that ISOs who adjudicate the petitions are ever mindful of the tremendous political pressure the legacy INS organization felt after the attacks of September 11 and subsequent reports that the some of the hijackers “were granted benefits to which they were not entitled,” citing to 9/11 and Terrorist Travel: Staff Report of the National Commission on Terrorist Attacks Upon the United States, August 2004, pp. 138–139; DOJ OIG, The Immigration and Naturalization Service’s Contacts With Two September 11 Terrorists: A Review of the INS’s Admissions of Mohamed Atta and Marwan Alshehhi, Its Processing of Their Change of Status Applications, and Its Efforts To Track Foreign Students in the United States, May 2002, pp. 91–104.

If a report were to be produced that demonstrated there were undue pressures which bear on ISOs and force them to approve petitions which should not be approved, this would indeed be a problem for the administration of immigration benefits in the U.S.

But that is not what the report says. The report is based upon interviews with 2% of employees who were, presumably, highly motivated to respond to the OIG’s interviews and survey. The report details some process improvements and notes anecdotal evidence that a small number of ISOs feel pressured by their supervisors and other managers to approve petitions which they believe should not be approved.

The unfortunate result of this report is that because it contains such inflammatory rhetoric and is based upon such a small sample, it becomes yet another political salvo rather than a thoughtful and helpful overall examination of immigration benefit adjudications by USCIS. Although USCIS concurred with several of the OIG process recommendations, responses by the OIG to USCIS comments on the recommendations such as “Automatic deference to public views can, and has, negatively affected the integrity of certain adjudications,” suggest a position-taking on the issue of immigration rather than an unbiased view of the process. Broad statements about immigration adjudications cannot be made when based on a 2% unrepresentative sample.

The OIG function is an important one within government. As President Obama noted yesterday

“We live in a 21st century economy, but we’ve still got a government organized for the 20th century. Our economy has fundamentally changed – as has the world – but the government has not. The needs of our citizens have fundamentally changed but their government has not. Instead, it has often grown more complex. Today, I am calling on Congress to reinstate the authority that past presidents have had to streamline and reform the Executive Branch. This is the same sort of authority that every business owner has to make sure that his or her company keeps pace with the times. And let me be clear: I will only use this authority for reforms that result in more efficiency, better service, and a leaner government,” said President Obama.

Continuing efforts to analyze government bureaucracies and increase efficiencies and fairness should be applauded. It is regrettable that the DHS OIG missed such an opportunity with its latest report.





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