Cite as "AILA InfoNet Doc. No. 04030366 (posted Mar. 3, 2004)"
American Immigration Lawyers Association
918 F Street, N.W. Washington, D.C. 20004 (202) 216-2400
March 3, 2004
Via email: firstname.lastname@example.org
Director, Regulations & Forms Services Division
U.S. Citizenship & Immigration Services
Department of Homeland Security
425 I Street, N.W., Room 4034
Washington, D.C. 20536
Re: CIS No. 2233-02; Comments to Proposed Rule "Adjustment of the Immigration Benefit Application Fee Schedule"; RIN 1615-AA84 (69 Fed. Reg. 5088 (February 3, 2004))
Dear Sir or Madam:
The American Immigration Lawyers Association (AILA) submits the following comments on proposed regulations published in the Federal Register on February 3, 2004, that would increase the fees for filings with USCIS by, typically, $55.
AILA is a voluntary bar association of more than 8,700 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA takes a very broad view on immigration matters because our member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students.
AILA strongly supports the adequate funding of USCIS to perform the functions, including the numerous unfunded mandates, assigned to it by Congress. However, we must question the appropriateness of raising the filing fees at this time, as well as the items that are proposed to be funded by this increase, the methodology for concluding that these are the appropriate fee amounts, and the Administration's actions in not determining the amount of, nor seeking adequate appropriations to, "turn the ship around" at USCIS.
In particular, it appears that the increases are largely dedicated to special programs or activities that should be funded by appropriations, rather than by the Examinations Fee account. These programs and activities include the new system of security checks, the new dedicated refugee corps, the study of outsourcing the immigration information function, EAJA fees, and administrative support fees currently funded by appropriations. Use of petition and application fees for special programs and activities contravenes the intent and the integrity of the Examinations Fee account and leaves it open to challenge by the public.
AILA also objects to the public characterization of this proposal as a "fee adjustment to enhance service," as described in the headline on the homepage of the USCIS website, when it is in fact a fee adjustment to, at best, tread water. The agency cannot credibly claim that this fee increase will in any manner enhance service-it is doubtful that it will even keep service from further deteriorating.
We do not for a moment doubt that USCIS needs additional resources to reverse the current state of its benefits processing operation and bring it to a reasonable performance level. But, at a time when the quality of service is at an historic low, price increases of this magnitude are not justifiable. Processing backlogs have reached crisis proportions, while, as discussed below, the agency wastes resources revisiting issues already resolved and harassing honest petitioners with requests for mountains of paperwork unrelated to their eligibility for immigration. The only available avenue for the public to resolve government errors and problems with their applications is a contractor-run 800 number that has proven to be useless for such endeavors.
Before USCIS can increase the prices it charges to the public, it needs to address at least some of the problems that plague its operations. Massive backlogs and absurd processing times are foremost among these problems. It is doubtful that the fee increase will even begin to decrease backlogs and processing times unless and until USCIS addresses the cultural and systemic problems that pervade the agency and until the Administration seeks, and Congress appropriates, sufficient funds to build the infrastructure needed to move this agency forward.
RFEs Cloud the Legitimacy of a Fee Increase
A major contributor to the slowness of processing is the tremendous spike in recent years in the number of filings that have been subjected to needless Requests for Evidence (RFEs). The RFE is a mechanism by which an examiner may request additional evidence from an applicant or petitioner in order to adjudicate an application or petition. However, requests for extension of nonimmigrant status, or immigrant petitions that carry the same standards as the ones applicable to the nonimmigrant status that the beneficiary currently holds, are subjected to extensive RFE requests, even though there have been no changes in fact or law since the last decision. Typical cases that receive requests for significant additional documentation beyond what is required in the regulations include: a priest from a major religious denomination being asked for 43 pieces of additional documentation that his is a religious occupation; a major, household-name company being asked for evidence that the company is a legitimate operation; an employer of an engineer being asked for evidence that engineering is a professional field; a petitioner for extension of H-1B, L-1 or other nonimmigrant status being asked for further evidence to demonstrate eligibility for the visa already held.1 The list goes on almost indefinitely.
Apart from the burden placed on the public by these RFEs and the degree to which they raise questions regarding the arbitrariness of the process, the RFEs drain considerable resources that could be better used for adjudications. Our members estimate, based on their own experience, that the rate of RFEs ranges from about 25% for some employment-based petitions, to nearly 100% for adjustments of status in some offices. While undoubtedly some of these RFEs are legitimate, the large number that are excessive or pursue irrelevant lines of questioning crowd out the legitimate ones in the eyes of the public. These RFEs easily double or triple the time spent adjudicating a case, yet most could be eliminated with a concerted effort by USCIS leadership to publish long-overdue regulations, issue clear guidance, and impose managerial control over the unfettered ability of adjudicators to pursue any line of inquiry they please and to reopen resolved issues.
These wasteful practices call into question the legitimacy of any fee request, much less a request for such significantly increased fees.
Source of Funds
As the recent GAO report so vividly underlined, a clear understanding of how much money is needed to fund the adjudication function is badly needed. AILA calls on the Administration and Congress to fund a study that would determine the amount needed to achieve an adequately funded adjudication process. Rather than piling those resource needs-exacerbated by the out-of-control backlog and long-neglected technology infrastructure-onto the backs of new applicants, Congress needs to step up and pay for what it has demanded. The adjudication function is as much in the public interest as the enforcement function, and should receive its fair share of appropriated funds. It is time to end the smoke and mirrors that have long obfuscated the budget process for immigration benefits funding, figure out exactly what is needed to make this system work, and directly appropriate money that would supplement reasonable user fees to do it.
Specific Funding Items
The proposed rule delineates several areas that the fee increase is intended to fund. Below we address these areas individually:
There can be no question that security checks are in the national interest. In addition to serious reforms in how the checks are conducted, the Administration must look to how they are funded. This is a matter of taxpayer interest and to the benefit of the entire public. It should be funded through appropriations, rather than relying on the unpredictable stream of revenue that results from user fees. A full and responsible infrastructure is needed and needed yesterday, and it is well past time that the funds are provided to build and sustain that structure.
We do not for a moment quarrel with the necessity of thorough and appropriate security checks with respect to applicants. If anything in the immigration process can stop the entry of persons who might do us harm, this is it. But those checks must be meaningful and appropriate, and attention must be given to making them efficient. Two and one-half years after September 11, there still is significant question as to whether entities like USCIS have the data they need to make an informed decision on an application.
If database information cannot be shared, police and security agencies need to make it a primary mission to respond to inquiries about IBIS "hits". Not only is it absurd and hurtful to businesses and families to slow the process of immigration while waiting for an answer, it is horrifying to see months and sometimes years pass before an inquiry is resolved if the object of the inquiry is indeed someone who means harm.
We also continue to be concerned about the clumsy system for conducting the checks. Nearly two years after the checks were instituted, they still are not an integral part of the adjudication system, and instead must be conducted as a separate process, resulting in a needless slowing of the adjudications function. Once a matter is cleared, there is no process for entering the information into the database to inform the next decision-maker of what was found. As a result, the entire process must be constantly repeated, unless the immediate decision-maker made a hand notation in the paper file and the paper file happens to fall into the hands of the next decision-maker. This rarely occurs, and in any event is at best a makeshift workaround to the inertia of the system, and not an efficient solution.
We also are concerned about the many needless checks that are being conducted. Petitions and applications that would not be legally impacted even if there were a positive "hit" are nevertheless subjected not only to the check process, but must await the clearance process as well. For example, I-130 and I-140 petitions filed alone are subjected to checks, even though no ground of inadmissibility would attach at that stage. This seems wasteful in the extreme.
The current mantra of the USCIS Public Affairs office is "we make no apologies for having slowed the process down"2 to conduct security checks. It is nearly two years since the check processes were instituted, and they have not improved to any noticeable extent in that time. Comments like this are disingenuous at best, and in fact are insulting to the people being asked to pay the tab. It is well past time not only to apologize for the fact that the process has not been made efficient and reliable, but to fix the process. Waiting a year or more to see if an applicant is a terrorist is no better than waiting a year or more for a security check to clear. Neither is a responsible way to fulfill this agency's missions.
Program Enhancements and New Initiatives
AILA is pleased to see the statements in the proposed rule regarding the establishment of a dedicated refugee corps, and congratulates the agency on its initiatives in opening an Office of Citizenship. We also recognize the resource burden of unfunded mandates that are beneficial to the national interest, such as naturalization for military personnel. All of these operations are clearly matters of national interest and foreign policy, and should be financed through appropriated funds, not the unpredictable flow of filing fees.
We adamantly oppose the aspect of this proposal that would use applicant fees to study outsourcing of the information officer function. As has been demonstrated by the failure of the 800 number system to adequately serve problem-solving needs, contractors working from scripts are no substitute for knowledgeable and trained agency employees who are accountable only to that agency. It is an outrage that applicants who would be subjected to the further service deterioration that would accompany outsourcing should be asked to pay for a plan for that deterioration. If the Administration is intent on making this error, then it should ask Congress, and not the potential victims, to pay for it.
The Fee Increase to Pay for Litigation Losses
The severe backlogs and agency refusal to apply the law fairly and uniformly are emblematic of a long history of agency problems. To add insult to injury, the proposed fee increase would force applicants to specifically pay for these problems when the agency is sued and loses. As the agency refuses to act on applications and petitions that are clearly entitled to timely, reasonable and substantive review and decision; loses files; errs on more and more applications; and provides no viable avenue to resolve these problems, lawsuits to force action have increased. The USCIS has factored the costs of these suits into the fees, and proposes a surcharge to pay for them.
The Equal Access to Justice Act ("EAJA") mandates that government agencies pay certain costs when they take a substantially unjustified position in litigation. USCIS proposes to evade this law by forcing the very people who are harmed by its actions or inaction to pay the costs of the agency's unjustified positions. EAJA is intended to make the agency stop and think before throwing the full force of the government's litigation capability against a party. Why should USCIS think twice about taking any unjustified position in litigation if it is going to turn around and hand the bill right back to the people harmed by that position? This provision, too, is unconscionable.
Administrative Support Costs
A substantial proportion of the proposed fee increase is to pay overhead costs that have been funded in the past through appropriations. AILA strongly opposes the movement of this money into the fee structure. Indeed, this provision calls into question the sincerity of the Administration's recent self-congratulations for requesting funds for backlog reduction. The appropriation request for backlog reduction is $140 million, while the amount to cover agency overhead that is now being put on the backs of applicants is $155 million. Thus, there is no real budget request for backlog reduction. Instead, $15 million is being taken away from an agency that is struggling near the point of implosion. This is movement in exactly the wrong direction.
What Should USCIS Do?
In January 1998, the Commissioner of the then-INS stated that the fee increase announced at that time would not be implemented until applicant wait times started to decrease. Today, no such reticence is shown. Even though the ordinary wait times on many applications are double or triple today what they were in 1998, USCIS offers no such concession to those who must pay increasing amounts for deteriorated service. AILA urges the Director of the USCIS to follow the example of his predecessor and demonstrate good faith by foreswearing the fee increase until the pandemic backlogs throughout the agency are noticeably decreased. AILA also urges the Administration to acknowledge through action what it has acknowledged through words: that immigration is an important part of our national character and the smooth operation of the benefits function is in the national interest. In other words, it is time for the Administration to go to Congress to immediately request the funding that this long-starved operation so badly needs.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
As far back as 1989, policy was enunciated that examiners should not re-adjudicate established facts, such as categorical eligibility. This directive is now ignored with impunity, leading to adjudication processes that waste valuable resources and cost the agency needless sums of money in defending litigation to challenge these decisions.
 See, e.g.
, "Spelling Mistake Sidelines Soprano," Pittsburgh Post-Gazette, 2/26/04.