Navigating the immigration labyrinth: Covid-19 slows down the USCIS, leaving the status of foreign workers  in limbo

August 6, 2020

 

 

 

Saipan— In mid-July, the U.S. Citizenship Immigration Services announced possible furloughs and closure of some of its field offices due to the Covid-19 pandemic and a significant decrease in visa applications and processes. Both factors resulted in a revenue decline for this fee-funded agency, which reported a $571 million year-end deficit. USCIS has requested the U.S.  Congress for a $1.2 billion emergency appropriation.

 

More than the financial malaise of the USCIS, the focus should be on the plight of millions of aliens-- legal or illegal--living and working in the United States, according to CNMI immigration lawyer Maya Kara. “Closer to home, the plight is that of thousands of foreign workers, who still comprise the bulk of the CNMI workforce, whose futures are uncertain,” said Kara, a veteran of immigration issues.

 

“The same goes for their employers. Between the Trump administration’s hostility to foreigners and the restrictions imposed by the coronavirus pandemic, we have a perfect storm that is devastating to the fragile economy of the CNMI,” she added.

 

Duty Free Saipan, for example is one of the CNMI companies that depend largely on tourism. With tourism on freeze, DFS remains closed and it has no plans to renew its workers’ CW-1 contracts.

 

“There has been a decline in CW processing by employers because people don’t have the business activity to justify work, to justify the employment and they cannot afford to hire people. Given the nature of our workforce in the CNMI, that creates quite a bit of hardship,” immigration attorney Bruce Mailman said.

 

“When employers are forced to lay off workers and the law says to the worker, ‘Okay it’s been nice to have you here for the last 30 to 35 years, go away now because you don’t have any status.’ And that’s really hard. That is why I applaud the availability of the long-term resident status that is being developed. Those applications are pending. We don’t have to go through USCIS [B1] and that’s going to be interesting because this has never been done before,” Mailman said.

 

Both Kara and Mailman have long been involved in the CNMI’s immigration issues even before the federal takeover by virtue of the Consolidated Natural Resources Act of 2008, which took effect on Nov. 28, 2009. Prior to the CNRA, the CNMI controlled its own borders, allowing the government to bring foreign workers and their immediate relatives to the commonwealth without going through the federal process.

 

 

 Maya Kara                                                               Bruce Mailman                                    Joe William McDoulett

 

Just how important is the function of USCIS? Joe William McDoulett, an immigration lawyer in the CNMI, said there is no other agency tasked with the issuance of immigration benefits in the United States.

 

“Whether a person is a tourist looking to extend, a permanent resident looking to become a U.S. citizen, the next Einstein with a cure for cancer looking to live in the U.S., or the family member of a U.S. citizen, that person must go through the process with USCIS,” McDoulett said.  “In addition, a person seeking immigration visas while outside the United States, i.e. permanent residence, must go through an initial processing at USCIS before a person can appear at an embassy for the visa itself. Without the USCIS, no immigration or naturalization benefits would be available.”

 

On a single day, the USCIS processes 30,000 requests for various immigration benefits and 3,000 family petitions. With too many laws, confusing regulations and extended processing time, the USCIS procedures are far from perfect.

 

“Is USCIS organized in such a way as to effectively execute its regulatory mandate? The answer is a simple ‘no.’ But that is not the agency’s fault or the fault of those within it. It is the result of a complex set of laws and regulations that people for some reason believe are simple and straightforward. USCIS has been given a set of rules that, on the one hand, confer vitally important benefits, while on the other hand, actively discourage the issuance of those benefits,” McDoulett said.

 

“As a result, USCIS is the most maligned agency with the lowest employee morale. The fix for all of this is much debated. The debate itself probably drives the problem because the dual nature of USCIS grows out of the attempt to meet on common ground between immigration advocates and immigration opponents. USCIS was established to grudgingly (very grudgingly) give benefits. The laws and regulations make USCIS its own worst enemy,” he added.

 

Mailman described the U.S. immigration as a conglomeration of laws put together. The current Immigration & Nationality Act is like the chimera, a Greek mythological creature that was built piece by piece.

 

“U.S. immigration has always been a complicated body of law. A lot of people have this idea that immigration is just filling up forms, and that’s probably one of the reasons they go to document handlers or fixers that don’t charge very much.  I actually spend a good part of my time trying to fix the harm that the fixers have done,” Mailman said.

 

Instead of focusing on the process, Mailman said, the USCIS should focus on access to problem solving. “We have managed to be very successful getting what our clients want for the most part. If something happens, I would like to be able to communicate with someone that will directly say, ‘this is the problem, can you fix it.’ If they say no, they always say why,” Mailman said.

 

“In my first 25 years of practicing immigration law here, it was kind of like that. We had a good working relationship with USCIS, at least with the Guam Field Office. They don’t have to agree with you. They don’t have to decide on things always in your favor, but you have to deal with the system and you want it to be administered fairly. Now we have found that we are able to meet whatever the requirements are, provided they were fairly set,” he added.

 

McDoulette said the Covid-19 pandemic has added another layer of complexity to immigration law practice. “Some of that is driven by people’s tendency to rely on the advice of a neighbor, relative or accountant, based on that person’s experience with immigration and trying to apply that experience to their own situation. Part of it is driven by the restrictions and closures caused by the response to the pandemic,” he said.

 

McDoulette said obtaining documents from both public and private sources has become harder. “Processing times, which were hopelessly slow before, are completely unknown. Finally, the ability to show a continued ability to support oneself is part of every immigrant application or long-term resident application: the uncertainty surrounding the pandemic makes future employment for most people very uncertain,” he added.

 

Individuals who have been living in the CNMI under humanitarian parole status have until Aug. 17 to file their applications for permanent residence under provisions of U.S. Public Law 116-24, also known as the Northern Mariana Islands Long-Term Legal Residents Relief Act. The law was written to protect the 1,038 individuals, who had been granted humanitarian parole during the Obama administration, from deportation.

 

With the tourism industry down and borders closed to non-U.S. flights, the CNMI economy is on a halt, causing big and small businesses to close either temporarily or permanently. Non-immigrant workers holding CNMI Only Transitional Worker or CW-1 and H2B visas in the CNMI are facing lay-offs, non-renewal of contracts and furloughs because of the lack of work in a wide range of industries.

 

President Donald J. Trump has also temporarily suspended the entry of certain foreign workers to the United States until Dec. 31, supposedly to protect American workers suffering due to the Covid-19 pandemic.

 

U.S. Homeland Security Acting Secretary Chad Wolf and U.S. Citizenship and Immigration Services deputy director for policy Joseph Edlow were asked by Senate Appropriations Committee vice chair Patrick Leahy and Appropriations Subcommittee on Homeland Security Ranking Member Jon Tester  to cancel plans to furlough 13,000 USCIS employees after revised revenue estimates show the agency will end the fiscal year with a surplus, not the originally projected $571 million deficit.

 

“Who is playing what game? I believe this is not by the Field Office management, with whom we have always been able to work, but far upper management. I don’t know what’s going on but Maya always says. ‘assume incompetence before you jump to conclude there is corruption.’ And maybe that’s the problem: lots of incompetence going around.  The USCIS upper management used to have a very strong professional core, not many of those people are left in the upper level management given the depredations of the Trump regime,” Mailman said.

 

“I don’t know if USCIS have had this kind of trouble before. It’s always been self-supporting and generally, doesn’t require funding from Congress to stay afloat. It’s reasonable to assume they’re not having the same level of income because they closed some offices and with that, the administration’s policies, they don’t have so much filing fee income. So it is kind of like any business—  when you don’t have income coming in you don’t have sufficient funds,” he added.

 

Despite the many challenges currently besetting the U.S. immigration, McDoulette advised those who have pending applications to be patient. “The backlog is not going to improve any time soon. If you receive a request for information, respond to it quickly and completely.”

 

“For those who are thinking about submitting applications, do not delay. Immigration law is not easy. If someone tells you it is, they do not know what they are talking about. Seek advice from an attorney,” he added.

 

Mailman said this is a wait-and-see game. “It’s not perfect and I wish it were better. I think policies, regulations and management will get back to a rational way of administering immigration. I see immigration as a positive good. Every one of my grandparents were immigrants, they all worked themselves to death and in doing so helped form this great nation.”

 

 

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