We have written recently about the Certificate of Non-Existence, a document that USCIS once issued at no cost, and now plans to charge $320 for, whatever it is.
It turns out to be a certificate that Homeland Security has no records on a particular subject. But why would anyone want such a document? We now have collected eight different suggestions on the question — some of them disturbing.
The first take on the issue comes from my colleague Elizabeth Jacobs, a one-time USCIS lawyer, who told me that she had not encountered the form during her years at the agency. She reminded me that, given the way the Biden administration handles illegal aliens flowing over the border, there are large number of them within the country who are un-recorded by the feds, and that a search of the records would show no hits.
My own takes are an unlikely one and a more likely one: If the government was trying to de-naturalize someone (a rare occurrence), one possible but implausible defense might be: “I never was naturalized in the first place” and that such a certificate might be useful to the alien under those odd circumstances.
A state or local prosecutor might want such a certificate to bolster her or his charges that an illegal alien had, among other things, broken the immigration law. The certificate would indicate that the indicted alien was here while violating the immigration law.
Two other possible reasons for wanting such a document come from Kathy Poppenger, an immigration lawyer practicing in Grand Rapids, Mich. She said it might be useful for a citizen or a green card holder wanting to bring in a relative from overseas via an I-130 Form to know whether such a form had been filed in the past and, if so, what did it say? Similarly, she wrote:
Another time that might become handy is when an employer will not share with the employee any info about an I-140 [the form filed by an employer wanting to get a green card for the worker]. The beneficiaries often would like to know if they have a previous priority date that could port to another case.
A priority date is a key factor in the timing of an immigration visa, the earlier the better; under some circumstances it can be transported from one document to another.
So far, so good, but the last three explanations shook my self-confidence; I have always thought of myself as a rational human being, lacking in biases, creative and imaginative, with a good sense of how the immigration system works — but these suggestions, none of which I anticipated, suggest that my self-view was overblown.
The sixth comment, which was in an email from someone named Andre, probably sent from Germany, came as a dash of cold water. Andre said he could use such a certificate because it would show (as he sensed) that he was not a U.S. citizen.
It had not dawned on me (loyal American that I am) that such a negative finding might be useful to anyone.
Andre in a subsequent message said that he was born in Germany to a German woman and an American man, and that as a result he was regarded by German authorities as a person with dual citizenship, but that he did not regard himself as a U.S. citizen. (In Germany, under some circumstances, there are distinct disadvantages if one is suspected of two citizenships.) Were he to get a certificate of non-existence from our government, maybe he could use it to convince his government that he was not a citizen of some other nation.
The last two comments, from someone I will not name, are the darkest of the bunch.
That person suggested that one possible motive for the proposed fee increase is that one federal agency (the benefit-providing USCIS) is seeking to siphon off some funds from another one (the law-enforcing ICE). The informant said that ICE has long been paying fees of one kind or another to other enforcement agencies for some types of information and that the proposed new fee would simply add to the USCIS revenue stream.
While I had not imagined that scenario, I certainly had not dreamed of the next one, suggested by my informant, who wrote: “I’m curious if this is another subtle tool to ... discourage [deportation] proceedings ... I doubt it but you never know.”
One agency using a bit of a 200-page Federal Register item to sabotage the enforcement of the immigration law, by making it more expensive for the government?
If so, it shows that Machiavelli is alive and well within at least one federal agency.