USCIS: Too big to not fail?

Sunday, November 8th, 2009
By: Jonathan MontagJ.D.

USCIS has a difficult job. It adjudicates immigration benefits. What makes the job difficult? First, the volume and scope of work. America is a large country and there are a lot of foreigners seeking lots of things – temporary visas, permanent residence visas, citizenship, work permits, travel permits, humanitarian entry into the United States, asylum, protections against deportation based on harsh conditions abroad, and on and on. The variety of different laws pertaining to each of these different types of benefits make simply keeping abreast of everything difficult. Second, the fact that new laws, regulations, and policies are enacted every day and new court cases interpret these laws, regulations, and policies, sometimes invalidating them and sometimes changing them, makes things very difficult. Third, immigration law, like most law, does not rest on a stable foundation of clear, easy-to-interpret law, but on a surf board of uncertainty requiring extrapolation and interpretation. Were the greatest minds in the country involved in managing this body of law, it would still be a difficult task. Finally, because of the concerns of national security, USCIS does not want to make mistakes that could harm national security or that could cause embarrassment – like issuing a visa to a dead person.

To cope with these challenges, USCIS is a huge bureaucracy. It collects small fortunes from customers to adjudicate benefits. The not-so-simple task of becoming a permanent resident based on marriage to a United States citizen costs $1365 in filing fees alone, and more if you count in medical expenses for a medical exam and vaccinations and photographs they do not even use. USCIS has also chosen to delegate different tasks to different offices around the country. Customers apply for some benefits in one place, say, naturalization in Arizona, or a battered spouse petition in Vermont, or family-based permanent residence in Chicago, or a travel document in Nebraska. These applications and petitions are then sent from city to city depending on their content, and often end up in the home city of the customer for an interview and granting of the benefit sought.

Let’s take the case of a person who is arrested by immigration authorities before he or she has filed their papers to become a permanent resident. The case is in the local immigration court. The foreigner needs to file for permanent residence and then ask the local court to dismiss the immigration court case so USCIS can adjudicate the permanent residence application. Follow the number of offices and cities involved. An I-130 petition must be filed by the U.S. citizen spouse. The petition is sent to a certain post office box in Chicago. From there the petition is sent to a town near Kansas City, Missouri, for processing, and then sent to another service center depending on work load issues. The permanent residence application has to be paid for by sending the filing fee to a town near Dallas, Texas. The application is filed with the local immigration court. If the case is closed, unless the court is willing to forward the application to USCIS, a new application must then be sent to Chicago, for forwarding to Missouri, and then forwarding to the local office where the foreigner lives. The office in Missouri schedule fingerprinting and photographing at local offices where the foreigner lives. Scheduling of appointments and requests for evidence are mailed from Missouri to the foreigner’s home and evidence must be returned by mail or courier to Missouri. Strict deadlines are imposed and all mail is presumptively properly delivered. Huge mail rooms must sort all this outgoing and incoming mail. Mail rooms are also presumptively error free. Ultimately, the petition filed in Missouri and then forwarded elsewhere and the application paid for in Texas and filed in Missouri, both must arrive at a local office where it is scheduled by a local office for an interview and a decision.

We immigration practitioners have become so used to this system, we don’t even question it any longer. But when I apply the process to another continent-size country, its absurdity is apparent. Think if you lived in St. Petersburg and wanted to become a permanent resident of Russia. Would you not think it Kafkaeque if you had to file a petition in Irkutsk and an application in Vladivostok and send a check to Gorky and hope everything is processed properly and an interview is scheduled in the local office in St. Petersburg. In addition to the procedural absurdity, think of the carbon footprint of the application, and petition shipped around the continent to end up where it all started. The big winner in this Byzantine process is obviously Federal Express.

Mostly, it works. The papers converge at the local office and the case is adjudicated. However, because of the disbursal of responsibilities all around the country and the complex procedures, the reticence of one office to step on another’s toes, and the inaccessibility of people with actual power to fix mistakes, it become very difficult to fix mistakes. Common sense cannot overcome the layers of bureaucracy and regulatory malarkey.

Here is a case in point. A describe a currently pending case. A foreigner who came to the United States as a student, fell in love with and married to a United States citizen. Before she married, she applied to extend her student visa. She did not hear anything from USCIS. She was then arrested by Immigration and Customs Enforcement for no clear reason. She was not detained long because it was obvious she could get a visa through her husband. Because after her arrest she was sent to immigration court, her husband filed a petition for her by mailing it to Chicago, then it was forwarded to Missouri and then to Laguna Niguel, California (in the OC). When the immigration judge heard that a student visa was still pending – and had given the ICE attorney six months to tell him what happened to the application, which the ICE attorney could not – the immigration judge terminated the court case. The foreigner then filed an application for permanent residence with USCIS in Chicago, for forwarding to Missouri, and then an interview in her local city. A petition costs $355 to file. Because her husband had already filed one, with the application going to Chicago she sent a copy of the petition and a copy of the fee receipt for the petition. When the case came to the local office, the petition from Laguna Niguel had not been forwarded. The local adjudicator had a complete copy of the petition as well as the petitioner sitting in his office and so felt confident to conduct an interview. He could not decide the case right away because he wanted some additional documentation about the petitioner – relevant to the I-130, which the U.S. citizen petitioner brought him the next day.

Because of the need for papers, the final decision was delayed. Before a decision could be made, the Laguna Niguel office, mistaken about whether fingerprinting was complete, denied the I-130 petition, asserting the petitioner abandoned the petition, two weeks AFTER the interview where the local office official worked on the case and took charge of the I-130 – even asking for more information so he could decide the I-130. As far as the couple was concerned, the case was all properly at the local office. Certainly, that Laguna Niguel also had the case would not cause a problem. Just tell Laguna Niguel the case was at a local office, an officer had already met with the petitioner, and the case was not abandoned. That is what the local officer did – he emailed Laguna Niguel and told them that the petition was wrongly denied, to re-open it, and forward it to the local office to consolidate with the copy in the applicant’s file. Even when dealing with a medical insurance company, the current archetype for an evil bureaucracy, if you pointed out that a procedure you were billed for was never done, the insurance company would straighten out the problem with little difficulty.

The interview took place about two months ago. I, the attorney for the couple, went to the local office last week to ask when the case would be adjudicated. [It used to be an attorney could email a specially trained officer who could look into these problems and resolve them. Now, an attorney must go online and make an appointment and travel to the office and wait and then speak to an information officer, who may or may not have any understanding what you are talking about. If not, as happened with this case, the case may be referred to an information office supervisor]. The response I got was quite rich. The local officer sent the email and is still waiting for a response. All we can do is wait. I need to address all further inquiries to Laguna Niguel.

I went back to my office and tried to reach Laguna Niguel. It used to be one could reach Laguna Niguel directly. Now, a more circuitous route is necessary. One calls an 800 number, the National Customer Service Center. Its actual location is not disclosed on the website. The only clue I have is that the operators all sound like they could have been in Shake and Bake commercials a few decades ago. I called the number and it what I thought was a stroke of luck, the phone call was forwarded to Laguna Niguel where I spoke to an information officer.

What she said was even riche than what I heard at the local officer earlier that day. The case was properly denied. The officer in the local office should have requested the file with the petition from them instead of adjudicating the case without it. The ONLY way to reopen a case is to file a motion to reopen. It requires a filing fee of $585. The motion must be filed within 30 days of the case being denied. They probably will not reopen it without the motion to reopen form and fee, and because it has been more than 30 days, will probably deny it because of lateness no matter how obvious it is that USCIS wrongly denied the petition. It is possible that filing the motion late and without the filing fee could result in reopening, but the officer made it clear from her tone that it was about as likely as Brad Pitt ending WWII by blowing up Hitler in a Paris movie theater. She also noted that her computer system indicates that the file that only Laguna Niguel can reopen is now at the local office with the adjustment file.

So here was the Catch 22. The local USCIS office requested the Laguna Niguel office reopen a case because it wrongly denied for abandonment while the case was being handled in the local office. Laguna Niguel will not reopen, despite its manifest error, unless a Motion to Reopen is filed, but a Motion to Reopen cannot be filed because it is too late.

Now it is time to be creative. I got back in touch with the local office. Suppose, I suggest, in an email, I file a motion to reopen with the local office without a fee because of obvious “Service Error” or I just pay $355 for the duplicate I-130 in the file. It is worth noting that a motion to reopen a case costs $585 but the case itself costs $355. It would be like if Earl Scheib charged you $585 to fix a crummy paint job but $355 to re-do the whole thing. In reality, however, if the Earl Scheib shop in Bogalusa, Louisiana, concluded that the Earl Scheib store in Laguna Niguel crapped up a paint job, the Bogalusa shop would probably just fix it and spare the customer the internal politics of who would pay for the paint and labor. I would add that it takes no paint and just a few key strokes of labor to reopen a petition.

There are some problems with this. Local offices are constrained about taking filing fees. An I-130 filing fee must be paid in Chicago. Chicago won’t take a fee without a petition. Does that mean a new petition must be filed in Chicago? If so, will the petition be forwarded to the local office or back to Laguna Niguel? Just because I ask for it to be forwarded to the local office does not mean it will be. In fact, my request will have no impact at all. Will Laguna Niguel forward it to the local office or just deny it again? Same for the Motion to Reopen? They are supposed to be filed where the case was denied. Will the local office take it anyway? Can they reopen a case denied in another office? If the Motion to Reopen is sent to Laguna Niguel will Laguna Niguel request the file from the local office and separate the now-united file or will they simply deny it because it is late or has no fee. As of now, there has been no response to my email.

In a world where a manager with authority is readily available to untangle messes, this mess could be untangled in moments. In a world with a sprawling bureaucracy, rigid rules, and little access to people with actual authority and communication is only with powerless information officers and call centers in undisclosed locations, even an easy-to-solve mistake becomes an awful bureaucratic headache. I’ll keep you posted on the outcome. November 8, 2009



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