ILW.COM - the immigration portal Immigration Daily

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Combatting The 'Culture Of No' In Immigration

by Angelo A. Paparelli

The following article is a modified version of an open letter written to Mr. Prakash Khatri, Ombudsman, USCIS.

I am writing to you as USCIS Ombudsman to begin the first of a number of open letters on how the administration of our immigration laws can be improved. As the nation's first USCIS Ombudsman, you have the legal authority and the "in-the-trenches" prior expertise to transform the government's delivery of immigration services to the public. It presents a truly unparalleled opportunity for positive change.

To begin this dialogue with you, I am offering a bit of immigration institutional history. Attached is a copy of an April 21, 1980 memorandum issued by then Southern Regional Commissioner, Durward E. Powell, Jr., and it is included in the hope that it may serve as an antidote to the current "culture of no" that prevails within much of DHS's immigration bureaus, and to counteract the lingering effects of the former Commissioner Ziglar's now-revoked "zero tolerance policy". (By the way, I note my indebtedness to my colleagues in AILA's Texas Chapter, and particularly to Eugene Flynn, for having brought this memorandum to recent public attention.)

The Legacy INS memo, addressed to district directors and officers in charge of the Southern Region on dispensing of information and adjudications decision making, urged INS employees to approach clients in a friendly, professional manner with the attitude of looking to approve petitions. The memorandum makes certain points that today seem forgotten or never fully learned by many among the current cadre of both veteran and newly-minted adjudicators:

  1. Most petitioners, applicants and beneficiaries who seek legal benefits under the immigration laws are "honest, hard-working people, not interested in fraud or obtaining any benefit for which they cannot qualify";
  2. "[O]bjectivity and professionalism on the job" are essential requirements for immigration adjudicators;
  3. "The [government] decision maker in adjudicating applications and petitions should not attitudinally approach the process, either consciously or unconsciously, in an adversary process or looking for a reason to deny"; and
  4. "[Adjudicators] with [their] broad knowledge of law and policy, [should all] approach [applications and petitions] attitudinally, in a friendly professional manner, looking for a way to approve
  5. them."
Sadly, these four precepts are only occasionally observed in the USCIS of today. Instead, practitioners hear reports that USCIS is taking steps to develop and implement its own fraud-investigation capabilities, notwithstanding that Congress, in enacting the Homeland Security Act, put investigative and enforcement powers in other units within DHS. In my view, a focus on the ferreting out of suspected fraud will only distract from the USCIS's overriding mission, the provision of immigration benefits, and add to the growing backlogs of undecided cases.

This is not to suggest, however, that fraud should go unpunished. Rather, I believe that petitions and applications should be promptly decided on the basis of the evidence in the record, and that suspected fraud should be promptly reported to immigration enforcement agencies for investigation, trial on the merits, and punishment in deserving cases.

USCIS adjudicators should therefore focus on embodying the four precepts of former Regional Commissioner Powell as the best means of tackling the enormous backlogs in petitions and applications. They should not unilaterally anoint themselves as immigration G-men and G-women and thereby defy the Congressional will.

I write to ask that you confer with appropriate national officers within USCIS so that USCIS and your office may formally reaffirm, in a new jointly-issued national policy memorandum, the principles espoused by Regional Commissioner Powell.

For the letter sent to USCIS Ombudsman, see here. For the April 21, 1980 Legacy INS memorandum on quality customer service, see here.

About The Author

Angelo A. Paparelli, certified as a Specialist in Immigration and Nationality Law by the State Bar of California, has been practicing business-sponsored immigration law for 25 years. He is a nationally recognized speaker, published author and leading expert on cutting-edge, business-related immigration issues-including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration regulations, and work visas for executives and professionals. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the ABA's Section on International Law and Practice. He also served from 1988 to 1994 as an elected member of AILA's Board of Governors. He is named in the 1990-2004 editions of Best Lawyers in America under category of Immigration Law. Mr. Paparelli received the President's Award at the June 2001 AILA Annual Conference for his contributions to the Association in liaison with the INS on the immigration consequences of mergers, acquisitions and other forms of entity restructuring. He is a graduate of the University of Michigan (B.A., 1971) and Wayne State University Law School (J.D., 1976). He is the managing partner of Paparelli & Partners LLP,, a firm in Irvine, California that practices exclusively immigration and nationality law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.