This is part 2 of a series of blog posts on the likely implications of a Biden Presidency on U.S. immigration policy. Read the first post here.
The mission of the U.S. Citizenship and Immigration Services (USCIS) is to administer “the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”
As I wrote in my previous post, in February 2018 the USCIS removed a passage from its mission statement that referred to the United States as a “nation of immigrants”. In so doing, the USCIS reflected the Trump administration’s fervent desire to abdicate America’s historical role as a safe haven for those fleeing persecution. Instead, in redefining the USCIS’s mission, the administration cast the agency as a dispassionate robotic bureaucracy adjudicating cases to fulfill narrow objectives.
In practice, the agency has not even lived up to its revised mission: adjudications have been anything but efficient and fair, and the values that gave rise to America’s status as a respected world leader have been swept under the rug, further eroding its moral standing.
The failures of the USCIS during the past four years have not been only moral; the agency has suffered from incompetent leadership, driven by political aims rather than technocratic imperatives, and has achieved few of its stated aims.
The USCIS is an agency of the Department of Homeland Security (DHS). Under the Trump administration, five people have served as DHS Secretary. Of these, only two have been confirmed by the Senate and none has held the position for more than 18 months – many have served for much less – resulting in an average tenure of just over nine months.
John F. Kelly, Trump’s first appointee as DHS Secretary, lasted 192 days. His successor in an acting capacity, Elaine Duke, served for 128 days. Kirstjen Nielsen, the embattled third appointee, under whose watch the border separation policy for migrant children was instituted, held on for 490 days. Kevin McAleenan succeeded Nielsen, serving in an acting capacity for 216 days, but later saw his term deemed illegal by the Government Accountability Office (GAO).
The current DHS Secretary, Chad Wolf, has been in office for over a year, but his tenure was also deemed unlawful by the Government Accounting Office in August 2020 because it failed to adhere to the processes outlined in the Federal Vacancies Reform Act.
These personnel changes in DHS leadership have weakened the agency’s ability to enact and execute a coherent and consistent strategy that generates consensus. They have also resulted in massive revenue loss for the agency as it was steered away from its core function of efficiently processing applications and petitions to instead dedicate its limited resources to hunt for fraud. In essence, the agency’s policy shift was akin to a grocery store directing its employees to spend most of their time looking for suspected shoplifters instead of stocking shelves, helping customers, and ringing up sales.
The politically driven administration of the DHS has resulted in numerous legal setbacks for Trump Administration immigration policy. First of all, the illegality of the appointment of the two most recent DHS Secretaries has meant courts have ruled they lack the authority to issue directives.
In July, a federal judge in the Eastern District of New York ruled that a memorandum issued by DHS Secretary Wolf that effectively suspended the Deferred Action for Childhood Arrivals (DACA) program pending a departmental review was invalid because Wolf was “not lawfully serving” as the Acting Secretary at the Department of Homeland Security when he issued it.
Then this week, the U.S. District Court for the Northern District of California set aside DHS and U.S. Department of Labor (DOL) rules that were designed to cripple the H-1B skilled worker and the permanent labor certification programs on the unsubstantiated pretext of the domestic unemployment resulting from the COVID-19 pandemic.
The DHS interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, which sought to revise the definition of “specialty occupation”, was to take effect on December 7, 2020. The DOL interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, which drastically changed the computations of occupational prevailing wages to price out many employers from petitioning for their foreign-born talent, took effect on October 8, 2020.
The Northern District court concluded that the DHS and DOL rules were promulgated in violation of the Administrative Procedure Act’s notice and comment requirement because the agencies – through their own internal delays, inconsistencies, and reliance on flawed data – failed to show good cause for not following proper procedure.
The DACA and H-1B rulings were merely two in a series of court embarrassments for the administration, which also saw courts strike down its attempts to implement a travel ban for nationals of predominantly Muslim countries (eventually a skeletal version of was upheld), include a citizenship question on the census, and bar Central American applicants from requesting asylum at the border.
By nominating Alejandro Mayorkas as the DHS Secretary, President-elect Joe Biden has communicated his intention to return the department to its mission. An experienced technocrat, Mayorkas served the DHS as the Deputy Secretary and the Director of the USCIS during the Obama administration. That Mayorkas is himself an immigrant is a bonus.
In a statement confirming his nomination, Mayorkas tweeted:
When I was very young, the United States provided my family and me a place of refuge. Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.
Mayorkas’s words are a welcome signal of his intention to redirect USCIS toward its mission by humanizing the agency and mending bridges with its constituents.
In my next post on the current state of our immigration system, I will focus on the inefficiencies that have shackled the agency over the past four years and describe the steps the Biden administration can take to undo their impact.