For fifteen years, I served as legal counsel for the Department of Homeland Security’s (DHS) U.S. Citizenship & Immigration Services (USCIS). During that time, I never spoke publicly about my work or provided legal advice outside of DHS. I’ve come to realize, however, that U.S. immigration is so complex that many people—through no fault of their own—often form opinions or assumptions without the full picture.

Now that I work in the private sector, I want to help educate the public about how immigration actually works. This information is for educational purposes only and not legal advice, and my prior experience does not imply the ability to influence or obtain special outcomes from DHS or any agency.

 Let’s start with the key players.

Who Oversees Immigration?

 The Department of Homeland Security (DHS) is the Executive Branch agency responsible for immigration, border enforcement, and national security. Under DHS are several agencies you’ve likely heard of: FEMA, the U.S. Secret Service, the U.S. Coast Guard, U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). For immigration purposes, the most relevant agencies are:

• CBP – handles immigration and customs matters at U.S. borders and ports of entry

• ICE – focuses on interior enforcement and certain national security issues

• USCIS – adjudicates applications and petitions for immigration benefits inside the United States.

It’s also important to remember that DHS manages immigration inside the United States, while the Department of State (DOS) handles most immigration processes outside the U.S., such as visa issuance.

 What Is Vetting?

After last week’s shooting in Washington, D.C., USCIS published a notice stating that individuals from certain countries will undergo more extensive vetting. “Vetting” is the government’s term for the background checks conducted on people seeking to enter the U.S., or applying for an immigration benefit while present in the U.S.

 The purpose of vetting is straightforward: to protect the American public from individuals who may pose a physical or economic threat. Usually, vetting includes verifying:

• Names, aliases, dates of birth

• Country of origin and travel history

• Employment and educational history

• Passports and other identity documents

• Photographs and biometrics

• Fingerprints through U.S. and international databases  

  In limited circumstances, DNA may be collected, but this is neither routine nor universal. While the process sounds comprehensive, its effectiveness depends heavily on cooperation from foreign governments.

 Not all countries have the ability—or the willingness—to collect and share reliable information. This reality makes vetting slow, imperfect, and expensive.

 Countries Subject to Extensive Vetting As of the date of this post, the U.S. has identified 19 countries currently subject to more extensive vetting (a list that may grow):

 Afghanistan; Burma; Chad; Republic of the Congo; Equatorial Guinea; Eritrea; Haiti; Iran; Libya; Somalia; Sudan; Yemen; Burundi; Cuba; Laos; Sierra Leone; Togo; Turkmenistan; and Venezuela.

Unintended Consequences of Extensive Vetting

Additional vetting is often necessary, but it has significant consequences. First, it slows down case processing. That delay:

1. Leaves many innocent applicants—people who pose no threat—stuck in limbo; and

2. Increases the likelihood that applicants will file lawsuits (called mandamus actions) to force the government to make a decision.

Once litigation begins, the government must divert substantial resources to defend the case—resources ultimately paid for by the American taxpayer.

To give a sense of scale, a single mandamus may involve:

•  1 or more USCIS adjudicators

• 1 or more USCIS supervisory officers

• 1 or more USCIS Fraud Detection and National Security (FDNS) officers

• 1 or more USCIS attorneys and/or paralegals • 1 or more Department of Justice (DOJ) attorneys and/or paralegals

• A federal district court judge and their staff

• Potential involvement from FBI, ICE, or CBP, depending on the issues.

Each case therefore consumes significant time, money, and manpower.   

Why Explain All This?

My goal is not to open a debate about what should or shouldn’t be changed in our immigration system—there are far too many operational and security details not discussed here. Instead, I hope to help you connect the dots between immigration processing, national security requirements, and the often-overlooked litigation costs created by processing delays.

This post is intended to shed light on the complexities of immigration. If you’re interested in learning more about a certain immigration benefit or process, or you have an immigration matter you’d like to discuss, visit Busenkell Law & Consulting, LLC at www.blc-immigration.com.