Immigration Risks Pose Real Threats to the New Government

By Angelo Paparelli and Ted J. Chiappari

Immigration policy challenges are apparently more radioactive than nuclear waste.  The three presidential debates and the sole vice-presidential debate – six hours in total – included not a single question on immigration and only one passing reference. In the final debate, Sen. McCain accused Sen. Obama of approving ads that “misportray[ed]” the Arizonan’s position on immigration. The same aversion to immigration was obvious at the party nominating conventions, where the speakers uttered the word “immigration” only four times (once by Republicans and thrice by Democrats) for every 25,000 words spoken. [1] By comparison, nuclear waste was discussed during each of the three presidential debates. [2] Come January, however, the next Administration and the new Congress will have no ready fallout shelter to shield themselves from the career-destroying gamma rays discharged by the public outcry over America’s dysfunctional immigration policies.

Comprehensive immigration reform will not be at the top of the politicians’ agendas.  Still, the current immigration legal structure, however rickety, remains in place and must be maintained.

The responsible agencies, the Department of Homeland Security (DHS), the Department of Labor (DOL) and the Department of State (DOS), still have important jobs to do.  Immigration adjudicators within the DHS unit known as U.S. Citizenship and Immigration Services (USCIS) must still decide within a reasonable time whether to approve or deny requests for immigration benefits by those seeking visas, green cards, work and travel permits, or U.S. citizenship.  Immigration enforcement officers at U.S. Immigration & Customs Enforcement (ICE) are still charged with separating out and apprehending the salmagundi of immigration law violators from the salad bowl of law-compliant American and foreign citizens who seek well-deserved benefits available under Congressionally-approved immigration laws. [3] The DOL must still certify or deny Labor Condition Applications (LCAs) for H-1B (specialty occupation) workers and PERM labor certification applications and must investigate and punish employers who violate DOL regulations protecting H-1B workers. U.S. consular officers under DOS supervision and in cooperation with DHS must still issue or refuse nonimmigrant and immigrant visas at American consulates and embassies abroad. Many dysfunctional aspects of our legal immigration system still cry out to the 44th President and the 111th Congress for administrative reform, vigilant oversight and ameliorative legislation. [4]

To put it in the Washingtonian metaphor of the third presidential debate when the discussion turned to an “across-the-board spending freeze,” this column will discuss whether immigration bureaucrats and enforcement officers should be wielding hatchets or scalpels when the new government takes office.  Your columnists urge the use of scalpels and the forsaking of hatchets as the public holds these government agents accountable to abide by their oaths (prescribed in 5 U.S.C. § 3331) to support and defend the U.S. Constitution and “well and faithfully discharge the duties” of their respective offices.  The column will also ask whether government officials, beyond mere adherence to their oaths, are “making the cut” in the best way possible, i.e., whether immigration resources and money are being spent in a way that promotes the nation’s best interests.

The deleterious effect of immigration axes – much like the denuded landscape created by logging companies that clear-cut forests – can be seen in the chopped up communities left in the wake of the rapidly proliferating ICE worksite raids that began in earnest with the December 2006 enforcement action against several Swift & Co. meat processing plants and accelerated steadily in the ensuing years.  Another example of the immigration cleaver cutting too crudely is a slow-to-produce and ultimately unconvincing USCIS report released in September 2008 finding apparent fraud and abuse in the submission by employers of H-1B visa petitions. [5] The immigration hatchets can also be observed in the DOL’s ham-handed, recently suspended blanket audit of all PERM labor certification applications submitted by numerous Fortune 500 clients of the nation’s largest immigration law firm. [6] Still another tomahawk – this one hurled by the USCIS Administrative Appeals Office (AAO) and the regional service centers at the agency’s headquarters and the multinational business community – involves an extra-legal movement to disregard settled policy interpretations allowing liberal use of the L-1B (specialized knowledge) visa category. [7]

To illustrate the harmful effects of thoughtless immigration resource planning, today’s column will focus on two of these misguided practices – the shoot-yourself-in-the-foot consequences of ICE raids and the likely harm from the USCIS effort to wade into areas outside its primary jurisdiction and extrapolate widespread H-1B fraud and abuse from a snippet of 246 cases out of nearly 97,000 petitions filed in a six-month period.

The worksite raids (high-visibility actions designed to appear tough on businesses owners who employ unauthorized immigrant workers while knowing of their illegal status) have netted precious few executives.  Instead, the cascade of ICE raids in 2008 has harmed large and small communities across the country.
Public officials have decried the raids.  Los Angeles Mayor Antonio Villaraigosa in a March 27, 2008 letter to DHS Secretary Michael Chertoff charged that the expenditure of “limited ICE enforcement resources on non-exploitative employers in key industries” is “nonsensical.” The mayor instead urged DHS to “adopt national ICE workplace enforcement priorities that focus on employers with a demonstrated history or reasonable suspicion of engagement in exploitative practices, such as violation of wage, hour or occupational safety laws and regulations.” Short of focusing on such clearly articulated priorities, the mayor predicted, “we risk doing serious and reverberating harm to our national economic base long before the comprehensive immigration reform that we commonly seek can ever take effect.” [8]

The Mayor of Postville, Bob Penrod, likewise expressed anger that the raid turned his town “topsy turvy,” saying that “it’s been nothing but a freaky nightmare since May.” The Postville High School principal, Brian Gravel, was even more emphatic: 

“Picking on a town of 2,500 people in northeast Iowa is not my idea of a naturalization or immigration policy. You can corner this one plant with federal agents and deport people. That’s one way to do it, but that’s a good way to ruin towns—ruin a small northeast Iowa place.” [9]

Members of the clergy have also spoken out.  The Bishop of Providence, Rhode Island, Thomas J. Tobin, and 15 pastors in his diocese have urged DHS to show restraint, recommending that ICE impose a moratorium on immigration raids or that individual ICE officers adopt a divinely-inspired strategy (conscientious objection) to hamper the agency’s ability to conduct raids:

[We] encourage the agents and staff of ICE to evaluate the morality of their participation in immigration raids in the context of their faith and sanctity of their conscience.  If their discernment leads them to the conclusion that they cannot participate in such raids in good conscience, we urge them not to do so.  If ICE agents refuse to participate in immigration raids in conformity with their faith and conscience, we urge the Federal Government to fully respect the well-founded principles of conscientious objection. [10]

Responding to the public outcry, two U.S. Senators, Edward M. Kennedy (D-MA) and Robert Menendez (D-NJ), on September 25 introduced legislation (S.3594, the “Protect Citizens and Residents from Unlawful Raids and Detention Act") which would establish minimum standards of treatment for U.S. citizens, lawful permanent residents and immigrants who are maltreated in raids by enforcement officers, impose procedural restraints and require training of ICE agents who conduct immigration raids. 

ICE need not wait for divine inspiration or restrictive legislation.  The agency, and the Immigration and Naturalization Service (INS), the predecessor entity, have always possessed, and (by virtue of longstanding policy directives) must exercise, prosecutorial discretion, the authority . . . to decide whether to enforce, or not to enforce, the law against someone including . . . [the decision whether to focus] investigative resources on particular offenses or conduct.” [11] This power to use restraint includes an expectation that government officers “exercise discretion in a judicious manner at all stages of the enforcement process – from planning investigations to enforcing final orders.” [12] Judging from the ICE post-mortem on the Postville raid (“the responsibility for any disruption lies squarely with the law violators, not with the agency”), ICE’s power to exercise prosecutorial discretion seems to have been overlooked.

Another area where ill-advised resource allocation produces dubious results can be seen in the recent USCIS incursion into perceived H-1B visa fraud and abuse. Based on an absurdly small sample size of 246 (0.2%) out of the 96,827 H-1B petitions filed between October 1, 2005 and March 31, 2006, the USCIS Office of Fraud Detection and National Security (FDNS) found 51 cases of fraud and abuse (33 cases of fraud [13.4%] and 18 cases of “technical violations” found to constitute “abuse” [7.3%]). [13] More than 80% of the asserted violations involved DOL regulations. [14]

This misallocation of agency resources is apparent on several fronts.  USCIS was formed to adjudicate eligibility for immigration benefits [15] rather than to ensure and enforce immigration-related labor protections and pursue immigration violations in the interior of the United States, tasks which by statute rest with other agencies. 

The Immigration and Nationality Act (INA) confers extensive powers to the DOL, and establishes an elaborate statutory scheme for the investigation of H-1B violations, the conduct of hearings and punishment for wrongdoing. [16] The Homeland Security Act (HSA), in distributing the former responsibilities of legacy INS, divided what had been the inherently conflicting dual missions of that agency. The new Bureau of Citizenship and Immigration Services (now USCIS) was charged with tasks solely relating to the adjudication of requests for immigration benefits, whereas all immigration investigation and enforcement roles were assigned to the Bureau of Border Security, later reconstituted into ICE and U. S. Customs and Border Protection (CBP). 

To be sure, the Secretaries of Homeland Security, State and Labor are authorized to prevent and detect fraud and receive an equal one-third share of the new “fraud prevention and detection” fees created under the L-1 Visa and H-1B Visa Reform Act. [17]

This law, however, provides no express authority for FDNS to engage in law enforcement activities involving the investigation and detection of fraud and abuse. Clearly, if an adjudicator identifies facts constituting apparent fraud, he or she is authorized to refer, and should refer the matter through proper channels to the DOL and ICE for investigation and prosecution. [18]

The correct approach, however, would be to maintain the separation of functions envisioned in the HSA.  Members of Congress, experienced immigration stakeholders and public policy think tanks have long criticized the folly and ill effects of requiring a single agency to adjudicate immigration benefits and simultaneously fulfill a law enforcement function:

Some Members of Congress believe that the INS must devote more priority and resources to enforcement-related duties. Others believe that the INS is too enforcement-oriented and should change to better serve immigrants. Still others believe that the mission of the INS is so conflicted that one agency simply cannot perform both enforcement and service functions. These advocates say that the INS should be dismantled and its duties dispersed to other agencies whose goals are similar.” [19}

The ill effects of USCIS’s expansion of its powers through the unwarranted thrusting of FDNS into traditional crime-investigation and law-enforcement functions were foretold in prescient testimony offered in 1999 by a former President of the American Immigration Lawyers Association, who urged that the effort to prevent fraud in the H-1B process must “balance the interests of enforcement and services in order to achieve efficiency, effectiveness, and fairness” and that “untargeted investigations waste resources. [20]

Similar concerns reverberate today.  The DHS Office of Inspector General (OIG), in an April 2008 report, [21] quotes an unnamed FDNS field officer on the diversion of adjudicative resources mandated by their superiors in Washington: “[FDNS Headquarters] at times, appears to be out of touch with the field and what our limitations are with regards to our ability to perform newly assigned tasks and responsibilities.”

Members of Congress also seemed to have forgotten the lessons of the past, by heaping more out-of-mission enforcement tasks on USCIS, [22] while quick to trumpet the alleged 20% fraud and abuse rate found in the FDNS survey as a means of supporting pet legislation to add new restrictions on the beleaguered H-1B visa category. [23]

* * *

The solution to the problems of unwise immigration resource allocation and money spent foolishly is to return to the founding principles that led to the division of enforcement and adjudicative responsibilities in the enactment of the HSA.  ICE and DOL must zealously perform their respective jobs of investigating and bringing to justice immigration law violators, while refraining from interference with the operations of law-abiding persons and businesses.

As for raids, ICE should exercise prosecutorial discretion and prudent restraint in a world of limited federal resources and the inauguration of a new government in Washington.  It should waste fewer resources grandstanding in mediagenic helicopter flights over worksites and flak-jacketed attacks on economically strapped communities. Instead, as the DHS’s April 2008 OIG report recommends, ICE must spend more time on the unglamorous gumshoe detective work of ferreting out and punishing immigration fraud.

Also as Homeland Security’s OIG suggests, USCIS adjudicators should be given facile, computer-supported means to report fact-based suspicions of fraud and abuse to ICE and DOL.  USCIS must remain primarily focused, however, on its central mission, the adjudication of requests for immigration benefits.  Diversion from this critical mission will only hamstring the agency in its overarching task of providing prompt, legally appropriate and efficient services to its legitimate customers.  If USCIS does anything else but focus intensely on its overriding mission, the agency will only perpetuate its predecessor’s sorry history of years-long processing times and exacerbate the hardships visited on families separated from loved ones and U.S. businesses striving to compete in the global marketplace. 

The coming Congress and the next President must irradiate and quarantine the distinct enforcement and adjudicative agencies within DHS so that the twin viruses of mission-creep and mission-neglect do not continue to infect the immigration body politic.  If our new leaders do not take prompt action to improve immigration functioning, then they will find that the half-life of radioactive public outrage over the bungling of immigration will certainly last until the next election cycle and beyond.

[1] See “The Words They Used,” New York Times, Sept. 4, 2008, online edition, available here; last accessed on Oct. 18, 2008).

[2] The Commission on Presidential Debates has published transcripts of all four debates, available here; last accessed on Oct. 16, 2008.

[3] The earlier view that immigration in America can be likened to a melting pot is changing. As National Public Radio reporter John Ydstie asked in his Oct. 7, 2004 report, entitled “Exploring America’s ‘National Identity,’” (accessible at: http://www.npr.org/news/specials/polls/2004/immigration; last accessed on Oct. 16, 2008): “Is America a melting pot, a salad bowl—or, as one Harvard professor puts it, tomato soup?”

[4] See, e.g., Angelo A. Paparelli and Ted J. Chiappari “End Immigration Arrogance: Time for New Welcome Mat,” New York Law Journal, Feb. 25, 2008.

[5] See USCIS Sept. 2008 report, “H-1B Benefit Fraud & Compliance Assessment (BCA Report), available here; last accessed on Oct. 17, 2008.

[6] For more on this sorry saga of bureaucratic overindulgence and retreat, see Angelo A. Paparelli and Ted J. Chiappari, “Labor Department to Lawyers: You’re Just ‘Potted Plants,’” New York Law Journal, June 23, 2008.  See also, Angelo A. Paparelli, “Dissuasion’s Disappearance: DOL Again Retreats on its PERM “Consideration” Analysis,” Aug. 30, 2008, available at: http://blogs.ilw.com/angelopaparelli/2008/08/dissuasions-dis.html; Angelo A. Paparelli, “Apology in Camouflage: DOL Throws in the Towel on its Blanket Audit of Fragomen,” available here; (both links last accessed on Oct. 17, 2008). 

[7] See Amber McKinney, “Shifting Definition of ‘Specialized Knowledge’ for L-1B Visas Confusing, Practitioners Say,” BNA Daily Labor Report 199 DLR C-1 (Oct. 15, 2008), reporting on comments of USCIS Chief Counsel, Lynden Melmed, that the “AAO should be following policy
memos when making decisions,” and Angelo A. Paparelli, “USCIS’s Word is NOT its Bond,” Sept. 12, 2008, available here; last accessed on Oct. 17, 2008).

[8] March 27, 2008 letter to DHS Secretary Michael Chertoff (on file with the authors).

[9] See Wayne Drash, “Mayor: Feds turned my town ‘topsy turvy,’” CNN.com, available at: http://www.cnn.com/2008/US/10/14/postville.raid/index.html#cnnSTCText; last accessed on Oct. 17, 2008. For DHS’s view, the comments of ICE spokesman Tim Counts are an eye-opening example of blame-shifting:  “ICE did not create the illegal alien problem at Agriprocessors. While we understand that our actions have an impact on communities, the responsibility for any disruption lies squarely with the law violators, not with the agency responsible for carrying out the law.” Ibid.

[10] See Aug. 19, 2008 Letter of Bishop Thomas J. Tobin et al. to ICE Boston Regional Chief, Stephen Farquharson, available here; last accessed on Oct. 16, 2008.

[11] See Doris Meissner, Commissioner, Immigration and Naturalization Service, “Exercising Prosecutorial Discretion,” Nov, 17, 2000, AILA Doc. No. 00112702, available here; last accessed on Oct. 17, 2008.

[12] Ibid. This policy remains in effect at DHS and establishes “guiding principles for determinations regarding prosecutorial discretion and remains in force.” See, William R. Yates, Associate Director, Operations, USCIS, Memorandum: Service Center Issuance of Notice to Appear (Form 1-862), Sept. 12, 2003, AILA Doc. No. 03100240; available here; last accessed on Oct. 17, 2008. 

[13] The statistical significance, if any, of the findings from this survey, and the extrapolations from these findings, should be taken with large chunks of salt. The survey’s finding of a 20% combined fraud and technical violation rate is subject to a margin of error of plus or minus 5%. The USCIS excluded from the sample population prospective H-1B workers still residing abroad and excused the site-visit component of the research in unspecified “extenuating circumstances” with unstated frequency.  The report states that it drew a “random” sample of 246 cases, but mere randomness does not establish lack of bias.  There is no indication of how randomness was determined and the samples chosen. The survey report notes that USCIS selected the Chi-Square distribution approach to theoretical probability distribution and used a 95% significance test.  This means that USCIS picked a significance level of 5%. There is no indication why a 5% level rather than a lower level was chosen. Would the test fail to be significant at a less than 5% significance level?  The significance level is subjective and is chosen based on the seriousness of the issue at hand.  For instance, a 1% significance level on murder trial might be chosen because it is serious and a 5% significance level on something less serious. The survey does not discuss the importance or “seriousness” of the H-1B visa category to U.S. employers and the nation’s economy. Moreover, the report does not say whether the USCIS picked the significance level before or after it knew the results.  The significance level must be chosen before the analysis is done, not after. Given these uncertainties and concerns, the next Administration, Congress and DHS should be slow to draw conclusions and extrapolate patterns of fraud or abuse from this study without confirming whether the survey results and methodology would satisfy neutral experts in statistics and probability.

[14] 20 CFR § 655.805. A supermajority of the 51 H-1B violations found in the BCA Report involved:  (1) employment at a location not listed on the LCA (55%), (2) the failure to pay the prevailing wage (27%), (3) the duties the H-1B employee performed were other than those listed on the LCA (12%), and (4) the H-1B worker paid the petition filing fee statutorily imposed on the employer (6%).  (Note that the percentage numbers exceed 100% because some petitions revealed more than one category of violation.)

[15] See The Homeland Security Act (HSA), Pub. L. 107-296; 116 Stat. 2135, §451(b)(1)-(5).

[16] INA § 212(n); 8 U.S.C. § 1182(n).

[17] Pub. L. 108–447; 118 Stat. 3351, 3353.

[18] In recent DHS commentary to a final rule that dramatically increased user-paid filing fees to fund the agency’s operations, DHS acknowledged that some commentators challenged the inclusion in its financial model of the cost of operating FDNS, since these functions exceeded the grant of authority under the HSA:

“DHS disagrees with these suggested restrictions and agrees that it may fund, as a matter of discretion, all of USCIS operations, or more, from fees. Congress provided the Secretary with reorganization authority to allocate or reallocate functions within DHS. HSA, section 872, 6 U.S.C. 452. The division of functions transferred by the HSA is subject to the direction and management of the Secretary. HSA sections 101, 102; 6 U.S.C. 111, 112. Accordingly, the Secretary may adjust the functions within USCIS or across component lines as appropriate. The reorganization of functions within USCIS to create the FDNS was a consolidation of specific previous functions to streamline operations. Accordingly, USCIS disagrees that the inclusion of FDNS in the fee calculation is inappropriate and will continue to fund that function through fees.”

See 72 Fed. Reg. 29851, 29867 (May 30, 2007). The cited agency commentary, however, does not maintain that the DHS Secretary formally authorized the creation of FDNS to effect “a consolidation [by an unnamed actor] of specific previous functions to streamline operations” as required by 6 U.S.C. § 452. If a USCIS functionary created FDNS, and the DHS Secretary did not comply with § 452, then the diversion of user-fees paid by U.S. citizens, business entities and foreign citizens would appear to be unlawful.

[19] See House Judiciary Committee, Hearing of the Subcommittee on Immigration and Claims, “Alternative Proposals to Restructure the Immigration and Naturalization Service,” May 21, 1998, Report 58-801 (Statement of Rep. Lamar Smith, R-TX), accessible here.

[20] Statement of Charles Foster at a hearing of the House Subcommittee on Immigration and Claims, House Judiciary Committee, “Oversight Hearing On The Temporary Professional Worker Visa Program,” Aug. 5, 1999, available here; last accessed on Oct. 18, 2008.

[21] See “Review of the USCIS Benefit Fraud Referral Process,” DHS Office of Inspector General, OIG-08-09, available here, last accessed on Oct. 18, 2008).

[22] See Oct. 9, 2008 Letter of Sen. Chuck Grassley, an Iowa Republican, to Acting USCIS Director, Jonathan Scharfen, available here; (last accessed on Oct. 18, 2008).

[23] See Oct. 8, 2008 Press Release of Sen. Grassley, “H-1B Visa Fraud,” available at:
http://grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=17622 (last accessed on Oct. 18, 2008). For a recent take on the longstanding challenges facing employers in using the H-1B and other employment-based visa categories, see James Offner, “America’s Vexing High-Tech Immigration Problem,” E-Commerce Times, available here; last accessed on Oct. 18, 2008.

* Angelo Paparelli is Managing Partner of Paparelli & Partners LLP (http://www.entertheusa.com), in New York, NY and Irvine, CA, and President of the Alliance of Business Immigration Lawyers (http://www.abil.com).  He writes a blog on America’s dysfunctional immigration system:  http://www.nationofimmigrators.com.  Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City.