Is USCIS Incrementally Recreating the INS?

The more things change, the more they stay the same

By Dan Cadman on May 27, 2018

An interesting thing is going on behind the scenes at U.S. Citizenship and Immigration Services (USCIS). The agency appears to be quietly building its own investigative corps.

First, consider a joint press release from USCIS and the U.S. Department of Justice, which announces a formal partnership to investigate and combat fraud. This is the first paragraph of the release:

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice today announced a Memorandum of Understanding (MOU) (PDF, 2.00 MB) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. This new effort improves the way the agencies share information, collaborate on cases, and train each other's investigators. [Emphasis added.]

A bit of history is in order here: The agency was created in 2002 by the Homeland Security Act to administer all immigration and naturalization benefits. It was created from the Examinations and Refugee divisions of the now-defunct Immigration and Naturalization Service (INS) and, although placed into the Department of Homeland Security (DHS), was deliberately carved away from the enforcement divisions of the INS so that the agency could focus on adjudicating applications of various sorts sought by aliens such as extensions of stay for nonimmigrants, requests for asylum, applications for resident alien status, petitions to become naturalized citizens, etc.

The uniformed enforcement divisions of INS — the Border Patrol and Inspections — were merged with Customs inspectors into the umbrella Customs and Border Protection (CBP) agency, and the plainclothes officers of INS in the Investigations and Deportation divisions were also merged with Customs plainclothes agents from their Investigations division, to become Immigration and Customs Enforcement (ICE). These two organizations are also components of DHS. Some, myself among them, have described the mergers of customs and immigration functions in both CBP and ICE as a disastrous shotgun wedding that never quite worked out as planned.

But the result of stove-piping all three organizations is that USCIS has been unable to actually do much about fraud other than deny applications here and there. The agency was left in the unenviable position of having to send referrals to ICE for actual investigation of cases. In the 15 years since the creation of DHS and its organizations, though, ICE has repeatedly shown an unwillingness to accept all but a few referrals, and then only when they appear to constitute large-scale frauds or conspiracies. Of course in the investigative and law enforcement world, sometimes small violations grow into large investigations, but in the absence of anyone to look into the "small" stuff, that doesn't happen. That ICE expects complex investigative work to be handed to them on a platter defies the logic of bureaucracies, any bureaucracies. Anyone that spends that much effort on something will fight like hell not to give it away.

USCIS responded to ICE's institutional brick wall with a couple of workarounds. One was to collaborate more fully with other interested agencies, including the FBI. It is notable that some of the recent notable prosecutions for asylum and investor frauds, for instance, were presented by the FBI, not ICE (e.g., here and here). Likewise with the Securities and Exchange Commission in pursuing civil violations by EB-5 fraudsters. The recent USCIS-DOJ announcement merely goes further down that same track.

The other workaround involves evolution of the agency's Fraud Detection and National Security (FDNS) Unit. This started as a small entity within USCIS whose job was to ensure that nothing fell through the cracks in background vetting of applicants by other federal law enforcement and intelligence agencies. From its embryonic start, FDNS has now grown to the directorate level within USCIS and has expanded its reach into all aspects of the benefits work that USCIS undertakes, including, significantly, naturalization. It was once a headquarters unit; it now has officers in many USCIS field locations around the country, and more are coming. The rapid expansion of FDNS was in no small measure a reaction to the sharp scrutiny and criticism over adjudicative shortcomings we have seen in recent years, some of which involved granting of refugee, asylum, and resident status to terrorists; naturalizing spies, criminals, and pedophiles; and President Trump's demand to institute "extreme vetting" procedures to combat these glaring deficiencies.

This leads me to my second piece of evidence about USCIS creating its in-house investigative corps: Take a quick browse through the USAJobs website, where all federal jobs are posted. Key in the phrase "FDNS" and a pertinent list of jobs shows up. There are several for "Immigration Officer" and a number of these announcements have been open for quite some time now, at field locations all over the country, sometimes for more than one vacancy in a location. It's true that the job description makes clear that the positions are not "law enforcement covered", almost certainly because that would be considered a step too far and opposed by ICE even though it has been contrarian about accepting USCIS fraud referrals. On the other hand, take a look at the first three bullets in the "Responsibilities" section of the immigration officer position in San Fernando, Calif.:

  • Identify, articulate, and pursue suspected immigration benefit fraud, public safety, and national security concerns.
  • Conduct administrative investigations and site visits to obtain documents, conduct interviews, perform system checks, and make determinations regarding potential administrative and/or criminal violations.
  • Serve as a liaison to law enforcement and intelligence agencies and participate in inter-agency task forces and partner-agency investigations to combat fraud, and deter and detect national security and public safety threats.

These are self-evidently the job responsibilities of an investigator, whether or not he or she is called that, and whether or not he or she is in a "law enforcement covered" position such as that enjoyed by FBI or ICE agents.

I want to say for the record that I am not at all against the development of this cadre of officers; it was a near inevitability given the cold shoulder given USCIS by ICE over the past decade and a half. But there is certainly irony in the fact that USCIS is partway to reconstructing what looks very much to me like the old INS that I knew, absent only the uniformed components. It suggests that the way the Homeland Security Act went about stove-piping of agencies without much lateral connectivity was a mistake.

Equally mistaken in my view is that after 15 years, and notwithstanding much grandstanding at the main DHS level about its strategic initiatives and the formation of inter-agency policy councils — not to mention the "One DHS" meme that was much in evidence at a certain point in time — nothing significant has been done internally to cure such a glaring defect. This points to extraordinary weaknesses in leadership at the highest levels of the department.

As Jean-Baptiste Alphonse Karr once notably said, "plus ça change, plus c'est la même chose."