Leaked USCIS Memo Is a Serious One, Says a Lot about the Agency

By David North on August 3, 2010

The long, detailed memo from U.S. Citizenship and Immigration Services that was leaked late last week, upon inspection, proves to be a serious document that says a lot about the agency. Here's a somewhat blurred copy of it.

It confirms my suspicion that USCIS is not a semi-judicial agency, weighing the pros and cons of public policy, but an active promoter of immigration in all of its many forms.

Since the administration apparently cannot pull off a congressional vote on a national legalization program, and since it apparently (and appropriately) does not want to rig up a "you all come" near-total administrative amnesty, USCIS feels it must consider a third alternative, a multi-part series of bureaucratic adjustments that will legalize a significant portion of the currently illegal population.

It is as if someone said "You cannot blow up that dam!", so you and your colleagues decide to quietly drill a whole lot of holes in the structure, and then widen the ones that can be widened.

It's the little-Dutch-boy-in-reverse strategy.

The document in question, entitled "Administrative Alternatives to Comprehensive Immigration Reform," is addressed to Alejandro Mayorkas, the Obama administration's director of USCIS, someone who is surely sympathetic to its contents. It says it is from four ranking members of Mayorkas' inner circle.

The quartet includes the two ranking career Associate Directors, Debra A. Rogers and Donald Neufeld, and two open-doors lawyers brought in by the Secretary of DHS, Roxana Bacon, the Chief Counsel, and Denise A. Vanison, who heads the policy office. The two civil servants and the two pols apparently all agree on its contents; there is nothing like a notation of dissent.

After decades of reading internal governmental memoranda I can see that this one is a team effort, carefully researched and assembled, and written with an eye for the political realities of the Obama administration. It is marked "draft," is 11 pages long, and looks like it has been carefully edited. It is a serious piece of work, and must have involved a lot of top-level people, and many negotiations over the exact wording.

It is no casual "what if" exercise.

It outlines 18 different actions or sets of actions, most designed to make illegals legal, or to eliminate complications for immigrants and nonimmigrants, all of which it says can be done without congressional action. Some of the 18 would make a major impact on the nation; others, such as figuring out a better way to appoint civil surgeons (the docs who do a once-over-lightly medical review of some migrants) are trivial.

Among the more interesting suggestions:

1) Let's make it possible, by administrative fiat, to convert people with Temporary Protected Status (such as recently arrived Haitians) to green card status. Currently there is a large population of TPS beneficiaries, many from Central America, who are kept in legal status by a series of extensions of TPS status. (TPS people can get work permits.)

2) Let's expand the use of Parole-in-Place (PIP) to legalize various groups of aliens in less-than-fully legal status. The happy examples of this mixed lot of aliens cited in the memorandum (these folks are skillful) are aliens in dubious status who are married to, or otherwise related to, members of the armed services.

3) Let's make it possible for dependent spouses of H1-B workers, under certain circumstances to work in the U.S. legally, as they cannot now. These spouses hold H-4 visas, are usually married to people with one or more advanced degrees, and their economic situations are not to be confused with those of farmworkers.

4) Let's expand grace periods from 10 days to as much as 90 days for various classes of nonimmigrant workers who have to leave the country, thus giving them a considerable stretch of officially tolerated illegal status before they depart (and presumably to give them more time to find some other visa category).

To illustrate the thoroughness of this document, let me quote the list, from page 7, of the classes to be covered by this proposed innovation:

Expand existing "grace period" to depart the U.S. for E-1, E-2, E-3, H-1B, H-1B1, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q, R, and TN workers and their dependents.

Turning from the benefits to be distributed to other matters, it is interesting to see how the USCIS quartet handle numbers of persons involved, and the matter of related fees.

There is nowhere in this otherwise carefully written document a single mention of how many people might be admitted to, or kept legally in, the U.S. as a result of these changes. It is as if the agency is only interested in helping individual aliens, and never counts the additions to the American population, or to its over-stuffed work force. It is a rights document with no mention of impacts on the broader society.

Frequently, however, there are muted references to the fees that keep USCIS alive; in many of the 18 cases, the innovations suggested will – happy day! – bring substantial funding to the agency, but again, there is nothing as crass as a dollar estimate.

The public has every right to be concerned about this document.