At a recent national conference held by the American Immigration Lawyers Association, USCIS Director, Alejandro Mayorkas, answered questions at an open forum. Immigration attorneys from all over the country attended the session and stood in line to ask questions directly of Mr. Mayorkas. He was extremely open to the questions and suggestions presented by the audience.
The majority of the questions involved two issues of foremost importance to immigration law practitioners: (1) the inconsistency in adjudications by USCIS officers throughout the country, and (2) the perceived “culture of no” style of decision making by the agency. Mr. Mayorkis addressed both of these challenges head on indicating that he understands that they exist and are problematic for practitioners and immigrants alike. However, he also was clear that the agency has a particular function to fulfill, namely in ensuring that immigrants who are permitted to come to the United States or remain in the United States are fit for that privilege, and also that the agency is extremely large, spread out, and tasked with many different types of roles which make consistent adjudication sometimes difficult.
Consistency is Key
He explained that “consistency is a component of predictability but they are not completely synonymous.” As a result, he explained that in order to improve consistency and to better educate the public, the agency must use the regulatory process more thereby decreasing the number of memorandum and informal types of rulemaking that has been so often the norm in the past several administrations. He also indicated that it is important for the agency to issue more precedent decisions so that adjudicators and practitioners alike will understand and have reference points for the factors to be used in adjudication of applications.
He explained that one of his biggest challenges is to operationalize the pronouncements that are made by headquarters. It is important for him to ensure that the values of the agency as described in Washington are lived on the ground by the adjudicators at offices all over the country. His goal, he stated, is “one USCIS”.
He also explained that they are looking at the purpose behind the statute and the regulations and attempting to convey that purpose to adjudicators. This statement was in response to questions regarding the belief by many practitioners, that the normal adjudicator is looking for ways to deny an application, rather than looking for ways to approve an application. This could be for any type of benefit such as an H 1B visa, an I 130 visa petition, a Fiancé visa petition or a Change of Status from visitor to student. Mr. Mayorkis explained that one of his goals is to work with his staff to develop methods to train adjudicators and improve their understanding of the welcoming and embracing qualities of the immigration statute, regulations and U.S. policy in general.
Finally, he explained that one of the most difficult problems he has been wrestling with is the difficult job that adjudicators have. First, when considering an immigration application, an adjudicator must investigate any possible national security issue and rule it out for that applicant. Second, the adjudicator must investigate any possibilities of fraud submitted on an application and rule that out. Once these two considerations have been completed, then an adjudicator can turn to the merits of a particular application. He explained that once the adjudicator has gone through all of the requirements to look at national security and fraud possibilities, it is extremely difficult for that person to then change their mind to a more welcoming and embracing philosophy.
Dedication to US Immigration Heritage
At all times during the one-hour question and answer session, Mr. Mayorkas attempted to answer the questions honestly and with straightforwardness. It was apparent to me and the audience that his thinking very deeply and carefully about the problems facing the agency. It is also clear to me that he understands the predicament of attorneys while we are trying to navigate the needs of our clients, with the regulatory confines of the immigration system. I was extremely heartened and encouraged by his comments, the depth at which he is thinking about his role as well as his dedication to the higher purpose of immigration in the United States.
His struggle to balance the demands of national security with the history of the United States in welcoming immigrants, as well as the clear statistical information showing the benefit of immigrants to our economy was evident. As a result, as someone who has been practicing strictly immigration law for the past 15 years, I was greatly moved by his comments and only hope that he will stay in the position long enough to carry through on some of his ideas, and to delve more deeply into the systemic problems with the agency.