FAIR Legislative Update January 9, 2012
This week, the Office of the Inspector General released a report that reveals that senior U.S. Citizenship and Immigration Services (USCIS) officials are pressuring employees to rubber-stamp applications for immigration benefits despite questions of fraud or ineligibility. (OIG-12-24 Report, Jan. 2012; The Daily, Jan. 3, 2012) The report is based largely on a survey of over 250 rank-and-file USCIS officers. (CNN, Jan. 7, 2012)
According to the report, nearly 25 percent of officers surveyed reported that a supervisor has asked them to approve applications that should have been denied. (OIG-12-24 Report at p. 16) An overwhelming number, 90 percent, said they felt they didn’t have sufficient time to complete interviews of those who seek benefits. (Id.; see also Sen. Grassley Press Release, Jan. 6, 2012)
The report also explores several complaints made by USCIS employees of misconduct by senior officials. For example, several employees claim that they have been required to approve specific cases “against their will.” (OIG-12-24 Report at p. 17) Although USCIS policy prohibits such pressure from senior officials, the report indicates that some USCIS leaders intimidate subordinates with threats of reprimand into rubber-stamping applications. (Id. at 18) Other officers complained that “cases are sometimes taken away from [them] and given to officers who the supervisor knows will approve [it].” (Id.)Possibly the most alarming complaint of them all, however, is that agency employees may be threatened with either a demotion, or the choice between a demotion or a relocation, for not approving enough applications. (KETK NBC, Jan. 4, 2012)
The report concludes that the speed at which immigration officers “must process cases leaves ample opportunities for critical information to be overlooked.” (OIG-12-24 Report at p. 16) The report also indicates that it takes officers “significantly less time and effort” to approve a case than it takes to deny the case or take other actions, such as request more information. (Id. at 15) As such, the report concludes that officers who are pressed for time “might opt to approve a marginal case and move on to the next file.” (Id.) Up until 2011, USCIS immigration officers were evaluated in part on the speed in which they processed applications, inherently pressuring them to approve benefits requests. (Id., see also Sen. Grassley letter to DHS Sec. Janet Napolitano, Oct. 14, 2010)
Sen. Charles Grassley (R-IA) requested the Inspector General conduct the investigation in response to allegations received by his office in 2010 that leadership was violating agency policy. Specifically, immigration officers asserted that senior USCIS officials were ordering employees at a California office to “find a way to get to ‘yes’” in processing visa applications. They also claimed whistleblower retaliation. (See Sen. Grassley letter to USCIS Director Alejandro Mayorkas, Sept. 10, 2010; see also Sen. Grassley letter to Inspector General Richard Skinner, Oct. 14, 2010) According to allegations made to Sen. Grassley’s office, USCIS employees at the California office complained that a “visibly agitated” USCIS Director Mayorkas asked them, “Why would you be focusing on [fraud] instead of approvals?” (Sen. Grassley Press Release, Oct. 15, 2010) Then, on a separate occasion at a conference in Virginia, Mayorkas stated that there are some “managers with black spots on their hearts” within the agency because they would not approve more applications. (Id.)
In response to the leaked report, USCIS spokesman Christopher Bentley said the agency's leadership “has consistently reinforced a culture of quality and integrity to ensure that every case is decided based on the law and the facts.” (CNN, Jan. 7, 2012) Stay tuned to FAIR for further details…
Friday, U.S. Citizenship and Immigration Services (USCIS) proposed a new rule that would help illegal aliens skirt the statutory 3 and 10-year bars to admission. (USCIS Notice of Intent, Jan. 6, 2012) The rule seeks to allow illegal alien relatives of U.S. citizens to stay in the U.S. while seeking waivers from the law, rather than doing so from outside the country.
Congress passed the 3 and 10-year bars to inadmissibility in 1996 to discourage illegal immigration and marriage fraud. The law provides that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves (either through removal or voluntary departure) is inadmissible to the U.S. for three years. An alien who has been unlawfully in the U.S. for a year or more and leaves is inadmissible for ten years. (See INA 212(a)(9)(B)(i); 8 U.S.C. 1182(a)(9)(B)(i))
The law also gives the Department of Homeland Security authority to waive the bars for an alien who is the spouse or child of a citizen or legal permanent resident—if the alien establishes that the bar would result in extreme hardship to the citizen or lawful permanent resident. (See INA 212(a)(9)(B)(v)) In the past, an alien who applied for a waiver would have to do so from outside the U.S. and a consular officer abroad would decide whether to grant the waiver.
The Department’s proposed rule, however, will now allow an entire class of illegal aliens to apply for hardship waivers from inside the United States—undermining the very purpose of the law. Specifically, the proposed rule will allow illegal alien spouses, children or parents of U.S. citizens (but not green card holders) to apply for a hardship waiver from inside the U.S. if they are:
- The beneficiaries of a green card application;
- Only inadmissible due to their illegal status;
- Able to establish that the 3 or 10 year bar would create extreme hardship for their U.S. citizen family member; and
- Able to establish they merit favorable exercise of discretion.
While the illegal alien would have to return to the home country to pick up his or her immigrant visa, the receipt of a waiver from DHS first would virtually guarantee his re-entry. (See Notice of Intent, p. 8-10)
Through this proposed rule, the Obama Administration is unmistakably carrying out recommendations agency officials made in memos during the first year of the Obama Administration on how to administratively grant amnesty to illegal aliens. (See FAIR Legislative Update, Aug. 2, 2010; Legislative Update, Sept. 20, 2010) In those memos, leaked in July and September of 2010, officials expressly recommend that to circumvent Congress, USCIS administratively create a way to help illegal aliens avoid the 3 and 10-year bars. Remarkably, in Friday’s announcement of the new rule, USCIS tries minimize its impact. USCIS justifies the rule as creating “a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation.” (Notice at 8)
Last week, the Georgia Department of Agriculture released a report documenting that the impact of the state’s new immigration enforcement law, H.B.87, on the agriculture industry was far less than anticipated. Highlighted in the Report on Agricultural Labor, are the results of a 36-question survey the state sent to over 4,000 agriculture producers, processors and other individuals in professions related to agriculture. (Report at 10) The state received 811 responses: 55 percent of the responses were from growers; 46 percent were from agricultural employers reporting $500,000 or more in annual income. (See Report, p. 12-13)
Overall responses show that one year after the passage of H.B. 87, agricultural employers in Georgia felt a minimal impact if any. Only 26 percent of respondents reported a loss of income due to the lack of available workers. (Report at 56) These losses were estimated to be in excess of $10 million, which represent 0.015 percent of the state’s total agricultural output in 2009, and 0.0013 percent of the total state economy. (Calculations based on data in Report, p. 8)
Importantly, the Report acknowledges that it is unknown whether the passage of H.B. 87 contributed at all to the claimed lack of workers. (Report at 55) Employers responded that several factors contributed to their hiring fewer workers in 2011, including a poor economy, effects of a prolonged drought, loss of revenue, poor worker retention, and lack of workers. (Report at 55) Of the 362 agricultural employers that offered written comments on why they had difficulties hiring workers, only nine percent referenced H.B.87. (Report at 100-117)
These results – even if caused by H.B. 87 – represent a mere fraction the loss agriculture industry groups predicted would result from H.B. 87. Shortly before the law was schedule to go into effect, the Georgia Agribusiness Council estimated crop losses from spoiled and unpicked produce alone could be anywhere from $300 million to over $1 billion. (GBP News, June 23, 2011) Nevertheless, Agriculture Commissioner Black used the new report released by his department to call for a new agricultural guest worker program. In the introduction, he stated: “[E]xisting guest worker programs provide legal paths for workers, but the paths are fraught with far too many business-choking idiosyncrasies – red tape problems that will be highlighted by this study. …The only answer lies in the prospects of a 21st century federal guest worker program that meets the needs of all types of agricultural enterprises.” (Report at 2)
California Assemblyman and true immigration reformer, Tim Donnelly (R-Twin Peaks), announced Friday that his referendum campaign to overturn the California DREAM Act (AB 131) has been unsuccessful. (See Stop AB 131 Campaign Website, Jan. 6, 2012) Despite a hard-fought campaign by Donnelly and his group of dedicated activists, Donnelly conceded that petitioners were only able to obtain 447,514 of the 504,760 signatures needed by the deadline in order to qualify the question for the November 2012 ballot. (Id.)
Under the California DREAM Act, illegal aliens in the State are eligible for state funded student financial aid programs, as well as Cal Grant A and B Awards once legal California residents receive grants. (AB 131 at § 4(b)-(c); see also FAIR Legislative Update, Oct. 11, 2011).
Assemblyman Donnelly called the loss “disappointing.” (See Stop AB 131 Campaign Website, Jan. 6, 2012) Nonetheless, he said his efforts served as “a warning to Governor Brown, and every Democrat legislator who voted to create a new entitlement program for illegals while the state still has a budget deficit over $9 billion….” (Id.)
This summer, pro-enforcement activists in Maryland were able to garner enough signatures to get an initiative on its November 2012 ballot in an effort to overturn their State’s in-state tuition law. (See FAIR Legislative Update, July 18, 2011)