USCIS has requested comments on changes it can make to reduce barriers. Here are Greg Siskind’s suggestions which he submitted at the Federal Register.

USCIS is to be commended for requesting public feedback on ways the agency can improve. I would like to offer a few suggestions of changes that would allow the agency to be more transparent and also improve service.

I. USCIS Examiners’ Identities Should be Known to Petitioners, Beneficiaries and Applicants

First, USCIS decisions should only be issued with the name of the USCIS examiner making the decision included. Decisions on millions of applications are issued annually by USCIS Service Centers without identifying who is making the decisions.  As a general rule, the philosophy behind transparency initiatives like the Freedom of Information Act and state sunshine laws is that the public needs to have information on government adjudications in order to be able to see accountability to the public by a particular government agency. Issuing anonymous decisions sends a message that an agency is not interested in accountability regardless of whether the individual making the decisions has any bad motives.

Decisions that are issued without disclosing the name of the individual making the decision are inappropriate for a variety of reasons. Examiners are also privy to a great deal of inside information on companies as a result of reviewing applications. Many contain confidential corporate financial information, information on pending patents, changes in top corporate officers, pending closures or opening of facilities, etc. There is no way to track trading on such inside information other than if an examiner’s identity is disclosed in the decision.

There is also no way to identify potential conflicts of interest on the part of the examiner. For example, if a USCIS officer worked for the lawyer filing the case, that could cloud the examiner’s decision in the case. But there’s no way for anyone to know this except the examiner alone.

In light of a considerable amount of publicity about law enforcement and armed forces members participating in white nationalist activities, the public also has a right to know who is making decisions on cases filed by immigrants who are often members of groups that are threatened by such groups. While one would hope no USCIS is a member of such a group, the fact that the Biden Administration is reviewing this problem with respect to other immigration agencies does suggest it could be a problem at USCIS as well

It is also worth noting that this is not normal in the federal government. I was once told by a USCIS public affairs officer that anonymity was needed to ensure the safety of USCIS officers. This is not a satisfactory answer. First, there is no evidence that the concern has any connection to reality. And the rest of our government operates just fine despite any potential concerns with this. That includes the IRS where auditors are known from the outset. It includes our judicial system (including immigration courts where judges and ICE attorneys are known to the immigrant). And, of course, it includes local USCIS offices where interviews happen face to face with an examiner’s identity known to the immigrant.

II. 90 Day EAD processing

In 2016, DHS succeeded in rescinding an earlier rule that required Employment Authorization Documents to be adjudicated in a 90-day timeframe. The agency’s current processing times for EADs are abysmal. Eight months to issue the card is unacceptable and is causing extreme hardships for immigrants and their employers.
DHS explained that the rule was needed because when the 90-day rule was established, the agency didn’t have to include anti-fraud features in their documents. The proper way to have viewed the question is why are EADs needed in the first place.  Identity documents like passports have similar security features and when combined with a USCIS receipt with a number that could be matched by an employer in a secure system like eVerify, the across-the-board EAD mandate is not justified. The millions (billions?) of dollars spent on EADs and the tremendous number of hours spent by USCIS employees producing these cards should be redeployed to other services.

If the mandatory EAD has to stay with us, then we should bring back the 90-day adjudication timetable and roll out premium processing immediately. Having flexibility in the case of delayed background checks was one reason given to justify doing away with the 90-day wait. First, one is left asking why we need to do a new background check for the EAD. The individual is already in the US and whatever threat they pose is going to be there regardless of whether they are getting a paycheck or not. If they’ve had a check previously, it shouldn’t be necessary to keep performing such checks every time an EAD is requested. Second, should those checks continue, USCIS has always had the authority to delay issuing the card for that reason and that preceded the 2016 rule change.

DHS promised to offset the risks to workers by offering interim work authorization for 180 days while awaiting an EAD approval. Unfortunately, this was limited to too small of a group. It only applies to extensions and only to very select categories. It left out spouses of non-immigrants like H-4s and L-2s and those groups constitute large groups of workers. Also, 180 days isn’t enough time given the current delays we’re seeing. The interim employment authorization should be for all I-765 categories and initial petitions as well as extensions.

III. Email

We’re now closer to 2050 than 1990. Yet USCIS seems to think Alexander Graham Bell’s invention should be the only way to communicate with the public. It’s time to allow application filers (including lawyers) to communicate with USCIS via email or an online filing system’s messaging feature. The amount of wasted time and financial resources – not to mention the inability to talk directly to examiners and the hours of waiting on hold – are ridiculous. The high fees USCIS is charging for its services should include the ability to correspond with the agency by email.

IV. Electronic Filing

USCIS spent the price of two state-of-the-art Olympic stadia on a failed electronic filing system.  $2 billion were spent with no testing from users – both USCIS officers and customers (including lawyers). That can NOT be repeated. USCIS should establish a tech advisory board that includes stakeholders like immigrants, their lawyers and employers, employees of the agency, and also outside experts. And stakeholders should be involved in all steps of the design and roll out of the product.

Also, a very high percentage of USCIS cases are filed by lawyers. Most immigration lawyers, like accountants, use online case management systems to manage their clients’ data. The IRS makes their very successful e-filing system open via their API and USCIS needs to do the same. If a system is going to be successful, lawyers are going to need to get on board and they will not do so if it means data needs to be reentered. USCIS can address this by having an open API and it will cut down on legal fees and improve the accuracy of the data being entered since there will be fewer opportunities for human error

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