I think that . . . there's no doubt about the seriousness of the problem . . . We have a cancer--within, close to the Presidency, that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself.
[John] Dean [recapping] the history of the Watergate break-in and subsequent cover-up for . . . President [Nixon]. March 21, 1973
Perhaps only slightly less virulent than the Watergate variety, a cancer is spreading within U.S. Citizenship and Immigration Services (USCIS). The malignancy began with the persistent refusal of U.S. Immigration and Customs Enforcement (ICE) to fulfill its Congressionally appointed police mission under the Homeland Security Act (HSA). Beginning in 2003 ICE routinely turned a deaf ear to the pleas of USCIS adjudicators to pursue suspected immigration-benefits fraud. Frustrated that fraudsters were going unpunished, USCIS similarly ignored the HSA and created a unit, now elevated to a Directorate, known as Fraud Detection and National Security (FDNS).
The HSA's walling off of immigration-benefits adjudication (a task Congress assigned to USCIS) fromimmigration enforcement (the shared province of ICE and U.S. Customs and Border Protection [CBP]) reflected a conscious legislative decision. Hearings in the late 1990s laid bare the longstanding problems of the former Immigration and Naturalization Service (INS) whose conflicting missions of enforcement and benefits had generated decades of immigration dysfunction.
Afflicted with selective amnesia, however, Congress failed to rebuke ICE or USCIS for crossing the prescribed lines. Instead, federal lawmakers fueled the mission-creep by larding FDNS with anti-fraud fees paid by businesses seeking immigration benefits for H-1B and L-1 workers. The result has been that FDNS, staffed with 700 officers and an untolled number of private investigators, has conducted tens of thousands of "site visits" at business organizations and religious institutions throughout the country.
An August 24 New York Law Journal article, co-authored by Ted Chiappari and me, available here, describes what can go wrong when FDNS site visits (which really should be called what they are, governmental investigations) are structured in a way to create merely an impression that the integrity of the immigration-benefits adjudication process is safeguarded when, in reality, the requirements for a meaningful and fair investigation are ignored. As one truth-telling FDNS officer explained to the DHS Office of Inspector General (p.15):
Congress has been told by FDNS that there is a bunch of fraud, so Congress is asking for the proof. [Headquarters] HQ FDNS is asking the field to find the fraud so it can be shown to Congress. And I sense HQ FDNSí frustration with the field because we arenít finding itÖ. Some of the leadership personnel have never been adjudicators, so they are completely out of touch with reality.
So why, then, do I liken the activities of FDNS to a spreading cancer? Here goes:
- Free Radicals. FDNS, like the free radicals that damage healthy organisms, takes aggressive actions without regard to the well-being of the functioning corpus politicus. FDNS has not published a notice in the Federal Register allowing public comment on how it conducts investigations of the H-1B and L-1 visa categories and has never undertaken a Regulatory Flexibility Act analysis to determine the impact of these investigations on small businesses.
- Vulnerable Victims. FDNS through its unannounced site visits invades the premises of unsuspecting and unprepared petitioning organizations. These on-site interrogations, akin to fishing expeditions, are not based on probable cause that a violation of the immigration laws has occurred; nor are they supported by a judicial search warrant. FDNS provides no prior notice of the investigation to attorneys whom the agency knows are representing the sponsor or the foreign beneficiary. The records FDNS asks to inspect and the individuals it seeks to interrogate are often, quite legitimately, at other locations; yet the investigators do not allow an opportunity to summon the records or the persons or reconvene at a later date. Instead, its officers merely write a report that outlines "suspicious" circumstances.
- Voracious Behavior. Like a spreading cancer, FDNS breaks down healthy structures. Its investigative techniques flout existing USCIS regulations which prescribe that if the agency desires additional information or testimony it must send a written request for evidence or schedule an interview at a USCIS office.
- Toxic Effects. Like a cancer, the growing influence of FDNS is debilitating the adjudication process by impairing customer service, speed of adjudication, and predictability of outcome, aslast year's internal revolt at the California Service Center and the ongoing opposition of USCIS adjudicators to headquarters policies reflect. FDNS has arrogated to itself a policing function, rightly the role of ICE under the HSA, that is at cross purposes, just like at the old bipolar INS, to the core function of USCIS -- the rendering of a decision, based on the evidence of record, to approve or deny a request for a particular immigration benefit.
- Surgery and Radiation. While cancer as yet has not been cured, medical science often succeeds in causing a state of remission. Doctors typically do this by means of surgery and radiation. So too with FDNS. Congress or the President should excise this alien growth from the benefits-adjudication process. It should also apply irradiation prophylactics to prevent a recurrence of anti-fraud tumors within USCIS. To the degree that purgatives are required to remove harmful impurities and maintain the health and integrity of our U.S. immigration system, they should be exclusively of the ICE-y variety.
John Dean's words about Watergate and its cancerous effects could just as readily be applied to the pernicious behaviors of FDNS: "We have a cancer . . . that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself." Just as Watergate posed a threat to constitutional government, FDNS is dealing a body-blow to the Fourth Amendment's protection against "unreasonable searches and seizures." Cut it out.
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.