Too Much Immigration Staff Time Is Spent on Low-Priority Matters

By David North on February 24, 2011

I suggested in a previous blog that the Department of Homeland Security should spend more staff time making high-priority immigration decisions, and less time on lower-priority ones.

The general notion being that the removal of aliens and decisions about migrants admitted outside of numerical limits should get more attention than admission decisions within numerically-limited classes, as the last-named set of judgments have no bearing on the size of the U.S. population, while the former two are crucial to that metric. Similarly, I noted that there is often an enormous amount of bureaucratic energy spent on very small, innocuous populations.

For example, much DHS staff time is involved in figuring out exactly how to determine which aliens, among those applying for permanent admission as an "alien of extraordinary ability", are really, really extraordinary and which ones border on the ordinary.

These aliens of extraordinary ability are within a larger, numerically-limited class of priority workers, plus their spouses and children; the larger class has a ceiling of 40,000 and in FY 2009 there were 308 extraordinary ones admitted from overseas and 3,134 allowed to adjust status. (In other words, most were already here, probably in some legal classification.)

So the numbers are small and numerically limited. My guess is that the process of applying to be considered an extraordinary alien, like the early stages of a beauty contest, are such that most of the alien applicants are pretty remarkable, just as all the beauty contestants are remarkably pretty. In other words, the nation does not have to worry too much about which sculptor is regarded as extraordinary, and which is regarded as ordinary. Such judgments, of course, are generally rather subjective, to say the least.

But despite the low stakes involved, much time and energy is spent on these decisions; for example, see the 15-page "Request for Evidence Template" that USCIS recently published regarding this class of potential immigrants. An RFE is essentially a computerized form letter in which the adjudicator fills in the blanks, seeking additional information, when he or she does not feel that the underlying application – another lengthy document – does not provide adequate evidence of extraordinaryness.

Since USCIS makes no attempt to enlist specialists, who might recognize an outstanding sculptor or engineer without all this paperwork, it feels it must gather information in a standard way – in case somebody sues. Hence the RFE, the long application, and endless instructions on how to tell if an immigrant is truly extraordinary.

A simpler way would be to follow the model used by much of the government when dealing with funding proposals gathered in response to a government request for them (an RFP). The agency making the grants assembles panels of experts from the outer world (who are paid a bit) and from other government agencies (who are not paid extra). Once the agency is satisfied that the panel is free of conflicts of interest, the panel reviews the proposals, marks them, and ranks them. The agency can, and sometimes does, overrule the panels, but must write a memorandum telling why it has taken that action. (I have served on such panels for DHHS, State, and Justice.)

Such a panel in this part of the immigration field would know a talented sculptor, for instance, when it read the application and it would score and rank the proposal, and suggest approval or non-approval. But USCIS would rather go through much effort to train its own non-experts to make such decisions, and to write long form letters for them.

Meanwhile, USCIS Director Alejandro Mayorkas, who appears receptive to comments from art communities, ordered a substantial overhaul last year of three small non-immigrant programs that, similarly, separated the outstanding from the rest, as I noted in an earlier blog, "The Migration Problems of the Rich and Famous Are USCIS's Concern".

Only about one out of every 1,280 nonimmigrant admissions was in the O-1, P-1, and Q-1 categories, those serving, respectively, "aliens with extraordinary ability", "internationally recognized athletes and entertainers", and "workers in international culture exchange programs". In short, here was another example of too much attention being paid to a set of low priority immigration decisions.

Yet another example of much staff time being devoted to low-priority matters relates to a tiny population that popped up recently as the USCIS continued to go through the process of applying the nationwide Immigration and Nationality Act to the Commonwealth of the Northern Mariana Islands (a much-needed reform, given the terrible record of the CNMI when it had control over its own immigration policies – and hired the subsequently-jailed Jack Abramoff to lobby for the continued immigration powers of the islands' government).

In this connection, one USCIS task was to move from a jumble of CNMI-created non-immigrant classifications to those of the Mainland, making temporary arrangements for those who did not fit neatly into the INA categories. (These islands are just north of Guam in the western Pacific.)

In the course of this exercise, USCIS found a population of about 500 people living in the islands as "CNMI-only nonimmigrant investors"; most were elderly Japanese, and in most cases their only investments were in their homes. Clearly a small, diminishing, and non-threatening population.

One appropriate, straightforward, and labor-saving option would have been to rule that all of these people, as long as they did not seek to change status or to bring other immigrants to the U.S., could stay on Saipan for the rest of their lives. Bear in mind that there are only a few of them, and most are at least 55 years of age.

However, neither Congress nor USCIS moved in that direction; instead a brand new transitional nonimmigrant category was created for these aging people, which will end on December 31, 2014. Elaborate rules were then created to sort out who could get this fleeting status, involving a few hundred people on a couple of distant islands. And less than three years from now, USCIS will face the question of what to do with that portion of this population that had not died, returned to Japan, or moved into a Mainland nonimmigrant category in the interim.

The 500 nonimmigrant investors in the CNMI are a huge group compared to some of the other nonimmigrant categories, all of which need a full set of rules, regulations, RFEs, and other arrangements. My favorite is a special visa category (M-3) for people living in border regions of Canada or Mexico who want to attend, as commuters, vocational training schools, such as in hairdressing, in the U.S. That category had three users in FY 2007 and none in either 2008 or 2009.

The point is that Congress and USCIS have organized things so that huge hunks of staff time are spent on small, non-troublesome migrant populations (e.g., Japanese retirees on Saipan, outstanding sculptors on the Mainland) instead of focusing scarce governmental resources on larger and more worrisome alien groups.

Congress should think twice, maybe thrice, before it creates any additional migrant classifications, particularly for those with very small populations.