Table of Contents
E. Agency Development: Resources and Training
Despite their importance to the U.S. economy, long-standing structural flaws in the United States visa system and the unintended consequences of security procedures instituted since 9/11 is causing an increasing number of high-skilled migrants to forgo coming to the United States, thereby depriving the nation of a critical supply of human talent. As empirically verified in the literature, attracting this talent is a key factor in maintaining the nation’s economic competitiveness and preeminence in the sciences. Lengthy delays in processing are widespread and significant. According to the U.S. Government Accountability Office, in 2003, it took an average of 67 days for foreign consulates to receive a response from federal agencies on requests for security checks on visa applicants whose work involved access to technologies designated as "sensitive" to U.S. national security. Lengthy processing delays often have nothing to do with the amount of time it takes to actually perform a security check on the applicant. Rather, cases get "stuck" or lost at one or more of the many agencies involved in the process, all of which have different databases and computer systems. Important security measures have not been carefully tailored to meet actual security needs and have not been backed up by the resources necessary to implement them effectively and efficiently. 240
The immigration benefits bureaucracy - the USCIS - must be granted adequate resources to fulfill their mandated requirements of regaining administrative control over United States immigration. At a minimum, a program that doubles the number of USCIS adjudications personnel should be implemented immediately, financed in large part by the new immigrant and nonimmigrant tariffs, so that application and petition adjudication backlogs can be eliminated. This would provide for private-sector quality customer service, increased confidence in the state’s institutional-legal system, and the uniform distribution of discipline in the form of credible denials or requests for additional evidence for suspected fraudulent applications and petitions. To calculate the needed appropriations for doubling adjudications personnel, the following formula should be used: (current annual USCIS personnel expenditures x 2) - (current filing fees revenues and Congressional allocations) - (one-third of the EB-3B immigrant tax revenues paid by intending immigrants) - (one-third of the H nonimmigrant tax revenues paid by intending nonimmigrants) - (one-third of the GN nonimmigrant tax revenues paid by intending nonimmigrants from Mexico) - (a reasonable and standardized "corporate immigration tax" paid by employers of more than 10 full-time EB-1, EB-2 and/or EB-3A immigrants, or of more than 20 full-time EB-3B immigrants and/or H, GN or TN nonimmigrants).
Once financed, management processes must be instituted at the USCIS which make legal immigration simpler and more certain by eliminating costly red tape and lengthy processing delays that stifle national economic progress. Customer service, in the form of distributing immigration information and administering immigration benefits, must be dramatically improved. Private business models would provide useful guidance for implementing world-class services. In essence, the USCIS is a service industry organization and it must institute appropriate management models as though it were operating in a competitive market environment. At a minimum, this would include an increase in training upon hire of each new USCIS employee as well as substantial "continuing legal education" requirements (on par with the American Bar Association’s requirements for practicing attorneys) throughout each employee’s tenure with the agency.
Institutional apathy and incompetence would be avoided through an appropriation of targeted education for USCIS employees in an information age filled with a barrage of over-information and disinformation. Normal market-based business practices must be expected of all U.S. immigration agencies and their individual agents as immigrant and nonimmigrant tariffs and corporate immigration taxes (and additional Congressional appropriations, if required) reach appropriate levels, whereby allocated portions of the electorate’s public account is efficiently spent on ensuring quality customer service in all areas of immigration-related operations. The agencies must be transformed out of those which marginalize and lose identification with the migrant human who is simply seeking fair, effective and efficient customer service. Lengthy processing backlogs and other bureaucratic delays in distributing immigration benefits to its customers (dysfunction cornerstones of the USCIS) would render any private business equivalent both obsolete and bankrupt in a competitive market. These extra educational and professionalism requirements should be expected of all front-line workers (e.g., information officers and adjudication officers) to ensure accurate, standardized, confident and timely application of binding statutory and regulatory provisions dictating the distribution of immigration benefits. The solution to administrative problems inherent in a lack of resources and training at the USCIS should not be an enactment of more restrictive legislation (or a withholding of liberalized reform) more likely to punish legitimate petitioners, beneficiaries and applicants that the U.S. economy relies upon for its labor market needs.
In addition to structural problems at the USCIS, administrative removal orders and Consular Officer visa decisions must be reviewable and creative solutions to jurisdictional problems must be imagined and implemented in order to allow for an appeals process in cases of erroneous or severely subjective decisions negatively impacting would-be nonimmigrants and immigrants. The United States’ constitutional checks-and-balances system was implemented on purpose, and without a provision for elements of the Executive branch to simply "opt out" at will. As addressed supra, due process is the linchpin of the nation’s legal system and immigration petitions and applications - even if adjudicated upon abroad - must conform to the U.S. Constitution, due process elements of which equally protect both documented and undocumented migrants when they are on United States soil. 241 In this vein, the coordination of policy between the USCIS and the USDOS regarding visa adjudication and issuance should be immediately implemented and a provision in the law added to allow for an appropriate appeals process both within the United States and at U.S. Consulates abroad. Moreover, additional appropriations must be authorized for increasing the number of Immigration Judges necessary to implement these changes as the current level of qualified judiciary would find themselves overwhelmed by the additional caseload.
240 Immigration and Nationality Act Amendments of October 20, 1976 (90 Statutes-at-Large 2703).
241 Act of October 5, 1978 (92 Statutes-at-Large 907).