Hidden Good News: Both Judges and DHS (Silently) Zap Religious Worker Fraud

By David North on October 29, 2010

How often does a restrictionist get to write the following sentence?:

"USCIS and the Ninth Circuit both combat fraud in an immigration program."

Not often. The Ninth Circuit and USCIS both tend to lean toward open-border policies, but not in this very specific case.

The activities being reformed, with the support of U.S. Citizenship and Immigration Services and the Ninth Circuit Court of Appeals, deal with the fraud-suffused R-1 Religious Workers' nonimmigrant and immigrant programs that were the subject of three separate devastating government audits, performed by three separate federal agencies in recent years, and described in an earlier blog.

This bit of reality, that various churches and "churches" had totally outwitted the federal government and had added scores of thousands to the total number of nonimmigrants and immigrants over a long period of years, was not, of course, obvious in either the judges' otherwise totally appropriate decision or in the USCIS press material. But if you knew the issues, and waded through the convoluted series of decisions, that truth became obvious.

Here's what happened: USCIS, prodded by the three reports, decided on a new procedure to handle situations in which R-1 nonimmigrant workers wanted to secure green cards, and their employers wanted that to happen. I will get to the nature of those procedures later.

Some aliens and some entities employing the aliens were upset by the reforms, and sought to stop them. They included Gabriel Ruiz-Diaz, the lead plaintiff (an R-1 worker), several other aliens, and the following entities (I am now quoting from the Ninth Circuit decision): "Land of Medicine [a Buddhist entity], Ukrainian Autocephalous Orthodox Church, and Seattle Mennonite Church."

Clearly we are not talking about a battle between the big battalions of America's organized religion, the major Protestant, Catholic, and Jewish organizations, on one hand, and the government on the other.

The plaintiffs won at the district court level, the reforms were stopped in their tracks, but the government, to its credit, appealed, and won recently at the circuit court level. There the lower court decision was reversed and some other issues were sent back to the district court for treatment.

As is often the case, the details are mind-boggling. In earlier days, when R-1 fraud and abuse were rampant, a nonimmigrant R-1 worker (and of course his or her family) could, while enjoying legal nonimmigrant status, simultaneously set in motion two government procedures.

One of these was a petition from the employer, a church or a pretend church, asking that the worker and his/her family be given one of the immigrant visa slots set aside for this program; the other was a petition by the worker (and family members) to be adjusted from nonimmigrant to immigrant status (i.e., from temporary worker to permanent resident).

USCIS, prodded by the adverse reports from GAO, DHS, and the Social Security Administration, decided that it would be prudent to make sure that the church was, in fact, a church, and that worker had, in fact, worked in an appropriate role for that church before freeing up visas for the people involved. Once that was worked out, the alien would be allowed to, separately, apply to change status to that of the green card holder.

Seems sensible, but the plaintiffs objected because, as the Ninth Circuit decision noticed, "Ruiz-Diaz's real concern is that USCIS does not process the petition for a special immigrant religious worker visa soon enough for it to do many of them any good. It takes time for visa petitions to work their way through the system . . . from Ruiz-Diaz's perspective the problem is compounded for those religious workers who are present in the country on R-1 non-immigrant visas, because they do not get the benefit of a stay that comes with filing an application for adjustment of status."

In other words the new USCIS regulations had made a major step forward to thwarting fraud and undue speed in the system. Without going into the legalese, the Ninth Circuit decided that it was in the agency's powers to change the procedures.

Sadly, these steps forward were shrouded in governmental verbiage. You can read the whole page of USCIS text announcing their compliance with the new ruling without ever seeing the word "fraud." The Ninth Circuit's decision, while being relatively self-explanatory for such a document, does not mention the fraud in the program as a rationale for its decision, and the word "fraud" only appears in passing in the next-to-the-last paragraph of the unanimous decision.

Nevertheless, two quite different government entities have done exactly the right thing in an awkward context – no government agency likes to tackle churches of any kind, even those named "Land of Medicine." But the government's reform efforts were set back by the legal action for nearly three full years.

The decision was written by Circuit Court Judge Pamela Ann Rymer, and the USCIS reaction to it was published on October 27.

During FY 2009, according to the DHS 2009 Yearbook of Immigration Statistics, the U.S. admitted 21,843 nonimmigrant religious workers. A smaller number of them (mostly adjustments of people already in the U.S.), 7,613, secured green card status.