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The INS Mess

How Immigration became a nightmare.

"No, no, I do not know what is the number of the form. It is the one for a person who has a family to bring to the country. Do you have that one? The one for relatives?... No. I tell you. I do not know the number of the form."

It was early afternoon on a Wednesday in December, and the line at the United States Immigration and Naturalization Service's regional office in Northern Virginia was backed up to the door. A fortyish man at the head of the line, a Pakistani, had been pleading his case for nearly five minutes to an agitated clerk, who shifted on her stool behind the high counter.

"Sir, like I told you, you've got to give me more to go on than that," the clerk said. "You see how many forms I've got sitting back here? I need the number." She called the next person in line.

Despite her insistence, the clerk did know which form the man wanted: after the line dissipated, I walked up to the same window and, in flawless Midwestern, asked for "the form you need to bring a family member here from another country to live." Without so much as a question she reached back to the stack of papers behind her and handed over INS I-130, Petition for Alien Relative -- the most commonly requested of INS forms.

Incidents like this are familiar to anyone who has encountered the Immigration and Naturalization Service. Mention the INS to a recent immigrant or someone trying to get a green card or work permit and you will see eyes roll. Xenophobic paper pushers are just a small part of the problem. Every immigrant has his own tales of lost forms, ill-trained inspectors, usurious fees, arbitrarily enforced rules, and notoriously sluggish bureaucracy.

In November 1990 the General Accounting Office issued a scathing, 177-page report on the INS that laid bare the Justice Department agency's negligence. "Over the past decade weak management systems and inconsistent leadership have allowed serious problems to go unresolved," the GAO charged. The report revealed how INS employees rigged their work schedules, allowing them to take home as much as $20,000 a year in overtime pay. It described an INS office in Los Angeles that deposited the thousands of dollars in fees it took in each day by mailing the cash to the bank.

The GAO scolding was issued a year after Raymond Momboisse, a senior INS attorney, quit after penning a twenty-two-page internal memo in which he described the agency as "totally disorganized." Among other things, Momboisse revealed that the INS regularly shifted funds from office to office to cover nearly $40 million in overspending, and that it deliberately overhired border patrol guards as a way to pressure Congress for more money.

Momboisse's memo came on the heels of yet another investigation of the INS that had been ordered by then Attorney General Richard Thornburgh. This inspection foreshadowed many of the abuses that the GAO would detail in its report a year later. Thornburgh discovered that the INS had lost 23,059 certificates of citizenship with "an estimated street value ranging from $11 million to $115 million." The Justice Department also charged that INS "data reported for applications received, applicants interviewed, and fees collected were inaccurate and unreliable at all organizational levels."

Shortly after the Justice Department audit, INS director Alan C. Nelson was forced to resign. In his place, President Bush appointed Gene McNary, a St. Louis County executive (and county chairman of Bush's 1988 presidential campaign). At a press conference the day after his confirmation, McNary pledged to clean up the agency and overhaul its management. "I intend to see that it is brought under control and that it is centralized," he said. In the months that followed, McNary pored over the Justice Department report and the Momboisse memo. He ordered the INS's four regional managers to review the offices under their jurisdictions. He acquainted himself with the workings of the vast, 16,000-employee, $1 billion agency.

Yet now, more than two years later, McNary and his crew haven't even begun to reform the INS. McNary came up with a few nutty, ill-fated proposals -- requiring all Americans and residents over age 16 to carry national worker-identification cards, offering Nicaraguan refugees cash "loans" to leave the country -- but nothing resembling the plan he promised would bring the agency "under control."

Even if McNary were to set about gauzing the immigration service's various management sores, however, the frustrations immigrants face wouldn't ease. Immigrants are treated shabbily by the INS not only because the agency is careless and inept, but because, despite its name, "immigration" and "naturalization" are not really its first concerns; the INS is far more interested in tracking down and expelling illegal aliens.

"The internal mentality of the INS continues to be one of [law] enforcement, while at the same time the INS tries to maintain a p.r. image of providing public services and immigration benefits," says Ignatius Bau of the San Francisco-based Coalition for Immigration Reform. Among immigration lawyers like Bau, this is commonly referred to as the "cop mentality," an attitude that is borne out in McNary's own assessment of his agency's purpose. In a Washington Post profile, McNary said that his top five priorities are: to "gain control of the southern border; increase efforts to deport criminal aliens; put into effect new regulations on granting asylum; enforce sanctions against employers who hire illegal aliens; and update the data processing system." In other words, he considers the INS to be at least four-fifths a police agency.

As a result, the agency's enforcement details are watched closely by top management. The INS maintains twenty-four-hour armed patrols along every open yard of the U.S. border. Under the 1986 Federal Immigration Reform and Control Act, businesses that hire illegal aliens now risk draconian fines. Swift deportation awaits those nabbed without proper papers. Last year the INS rounded up and expelled nearly 1 million illegals.

In contrast to its concerted enforcement effort, the INS only grudgingly administers the other, more mundane half of its responsibility. Since navigating incoming legal immigrants through the labyrinth of immigration laws is of comparatively little concern to agency brass, they don't bother to keep a close watch on how immigration benefits are handled. Instead, INS regional offices around the country are granted virtually a free hand in deciding for themselves how and to whom they should give out green cards, visas, and work permits. Predictably, the result is chaos. In his parting memo, Momboisse compared the INS to "a feudal state with each region, district, and sector acting independently to give its own interpretation to the law."

For example, the city of Chevy Chase sits on the border between Washington, D.C., and Maryland, and is divided by Western Avenue. One side of Western Avenue is considered Chevy Chase, D.C., and falls under the control of the INS regional office in Arlington, Virginia. The other side is considered Chevy Chase, Maryland, and falls under the jurisdiction of the INS office in Baltimore.

Suppose, for instance, that you are a non-American who married a U.S. citizen, which makes you automatically eligible for permanent residence status. If your spouse lives in Chevy Chase, Maryland, you must travel to Baltimore, file the proper documents, and wait nine to twelve months (or longer, depending on the time of year) for an interview from an INS inspector before you will be granted permanent residence papers. During that time, you cannot leave the country for any reason or else you lose your eligibility to return. If, however, your spouse lives across Western Avenue in Chevy Chase, D.C., you will be interviewed by an INS inspector in Arlington the same day that you file your papers. In Baltimore you cannot submit papers without attaching a copy of a birth certificate. In Arlington they don't even ask to see a birth certificate.

Each regional office also decides how many applications it will process a day. The Arlington office typically hands out numbers to the first 125 people in line when it opens in the morning, and turns everyone else away. Lines usually start forming for the next day soon after the office closes in the evening. Other offices compound the problem by accepting applications only two or three days a week. Still others are open during business hours every day and take all comers.

And the rules vary not only from office to office, but often from inspector to inspector within the same office. One recent immigrant from the Philippines told me that after waiting in line from two in the morning until noon to file naturalization papers, he was finally seen by an inspector. "The lady told me that my application was no good," he said. "She told me that I needed to show her my birth certificate, but I didn't have it." The inspector informed him that he would have to come back with his birth certificate before he could file his papers. So the following week he once again waited in line for nearly ten hours. This time he brought his birth certificate and presented it to the inspector -- a different one from the week before. "She said I don't need it," he says. "She didn't look at it, even."

Some immigrants, especially those whose English is poor, have taken to hiring lawyers to accompany them to their meetings with INS inspectors, precisely to avoid this sort of frustration. But many immigrants can't afford the immigration service's prohibitive filing fees, let alone attorney's fees. Every INS form has a fee, and every fee must be paid up front. Except under very limited circumstances, there are no waivers of fees for people who cannot afford to pay. And fees are not refunded, even if the application is rejected.

Coming to America isn't cheap. Filing an application with the INS for naturalization costs $90. Becoming a permanent resident runs $120. Requesting permission to bring a foreign relative runs $75. For a work permit, add $50 more. Add to that fees for fingerprinting and photographs that are required for many applications, and in some cases the total for the application alone can top $500 to $600, says Bau, and sometimes reaches into the thousands.

Last year the INS attempted to charge Salvadoran refugees fees totaling $380 when they applied for temporary resident status under a special amnesty program. A family of five or more was subject to $1,435 in fees. But under pressure from immigration groups and Joe Moakley, a Democratic representative from Massachusetts, the INS scaled back the fees to $75 per person, $225 for a family of three or more. In order to remain in the country, however, Salvadorans must renew their status every six months, at a cost of $60 per person. And, true to form, the INS refused to pay refunds to those refugees who paid the original $380.

For those who can afford the filing fees, there is still the matter of figuring out which combination of forms is required. There are dozens of combinations governing every possible circumstance under which a person could immigrate.

"How do you immigrate to the United States? A very good question," says INS spokesman Duke Austin. "Very difficult to answer.... I mean, we're talking hundreds of pages of legislation." Indeed, immigration laws are needlessly, often mindlessly, complex. Every few years, in a fit of immigration "reform," Congress trowels a new layer of benefits and restrictions on top of existing legislation, making it more difficult both for immigrants trying to figure out if they qualify to enter the country and for the INS. "I've been working at it for fifteen years," admits Austin, "and there are things that even I don't understand about the law."

For example, under the law there are three broad categories of people who are allowed to immigrate: 1) family members of U.S. citizens or legal permanent residents; 2) people found eligible to work in the United States; and 3) political refugees. A would-be immigrant who doesn't fall into one of these three categories can't immigrate. But even immigrants who do appear to meet the requirements still may not be allowed to enter.

Take the first category. The INS claims that keeping families together is a primary concern, so immediate family members of American citizens or permanent legal residents are eligible for visas without waiting. However, what you consider to be your immediate family and what the immigration laws consider it to be are probably very different. The INS, for instance, does not count brothers or sisters as immediate family. It does not recognize a child either, if he or she is married or over 21. Neither does it consider a husband or wife immediate family if, as INS documents put it, "you were not both physically present at the marriage ceremony, and the marriage was not consummated." The INS considers these family members "restricted."

The distinction is important. While an unlimited number of "immediate" family members are allowed to immigrate each year, "restricted" family are subject to quotas and long waits. Under new immigration laws that went into effect last October, a total of approximately 25,000 restricted family members from each country will be allowed to immigrate this year (up from 20,000 previously). When their eight-digit visa number comes up, they can enter the country. But from many countries thousands more than the limit apply each year, resulting in huge backlogs. For most countries, the wait for restricted relatives now stands at about three years. From Mexico, the wait is nine years. The Philippines tops the list with 12.5 years.

Equally quirky rules apply to immigrants who come to the United States to work. Not everyone is eligible. Immigrant workers must fall under one of the agency's three work "preference" classes. "First Preference" workers, according to the INS, are "aliens with extraordinary ability in the arts, sciences, education, business, or athletics which has been demonstrated by sustained national or international acclaim, or outstanding professors or researchers or certain multinational executives and managers." "Second Preference" workers are essentially the same as First Preference workers but not as famous. "Third Preference" workers are skilled and unskilled laborers, such as fruit pickers, who perform usually low-paying, menial jobs that employers can't find enough Americans to do.

But an immigrant who meets the INS's requirements might still be prevented from immigrating. Suppose that a catering company in New York has its eye on a famed Turkish ice sculptor and wants to hire her full time. She would be eligible to enter the United States under the "extraordinary ability" category, right? Probably not. Because as defined by the immigration laws, extraordinary skills aren't skills that are extraordinary in themselves, but those that no other person in the United States possesses. This means that before a company may bring a foreign citizen here to work, it must prove that it has searched for an American to do the job and failed, usually by posting notices and advertising in newspapers. And the United States already has its share of ice sculptors, many of whom doubtless are unemployed. Even if the ice sculptor is found eligible to immigrate, that still isn't a guarantee she'll get in, since the INS puts a yearly cap of 40,000 on immigrant workers (with the exception of Third Preference workers, who are admitted only when shortages of laborers arise).

Similarly, immigrants applying for green cards as political refugees may be rejected even if technically they are eligible under the law. According to INS Form I-589, Request for Asylum in the United States, "The burden of proof is upon you to establish that you have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion." The INS defines persecution as "to pursue; to harass in a manner designed to injure, grieve, or afflict; to oppress; specifically, to cause or put to death because of belief."

Sounds fair enough, but that isn't the definition that the government actually applies in deciding who is granted political refugee status. If it were, President Bush wouldn't be summarily turning away the latest wave of Haitian boat refugees, many of whom would qualify. Rather, political refugee status is largely granted not on the basis of persecution itself, but on the basis of which country is doing the persecuting. A 1987 GAO study revealed that the government was far more likely to grant political asylum to refugees from countries hostile to the United States than those from friendly countries. Thus, the administration granted asylum to scores of refugees from Afghanistan during the 1980s and to refugees who escaped from Cuba in a helicopter last year, but refused thousands from El Salvador and Guatemala.

There are still further immigration restrictions. Under the law, not even an extraordinarily skilled, politically persecuted husband of an American citizen can immigrate to the United States if he is or was at any time in the previous ten years a member of the Communist Party. Under federal law, this prohibition is supposed to be illegal. In 1987 Congress passed legislation reforming the 1952 McCarren-Walter Act, which barred Communists from entering the United States. The new law prohibits the government from shunning people who hold political beliefs that, for an American citizen, would be legal. But that hasn't stopped the INS from requiring immigration applicants to "list your present and past membership, in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or any other place," including "location, dates of membership, and the nature of the organization." Write down "Communist Party" and you won't get in. The INS also maintains a "lookout list" of people from various countries who, because of their political beliefs, would be rejected out of hand if they attempted to immigrate. The list, which dates back to 1904, contains more than 350,000 names; 250,000 of them were added after 1980.

Otherwise qualified applicants are also prohibited from immigrating if they are infected with what the government terms a "highly communicable disease" and thereby pose a health risk to Americans. The administration's definition of this term, however, is strangely selective. As Donald Goldman, a member of the National Commission on AIDS, points out, "Tuberculosis isn't included on the government's list of infectious diseases. Neither is bubonic plague." In practice, the term "highly communicable disease" has become a euphemism for AIDS. The administration claims that HIV and AIDS carriers are barred because the government cannot afford health care for infected indigent immigrants. This is a specious argument. After all, the government doesn't stop terminal cancer patients at the border.

There is one way under the new immigration laws that a lucky few can circumvent all these nitpicky regulations and enter the country whether they're eligible to or not. For the first time, the INS is holding a lottery this year that will grant green cards to a total of 40,000 people. For four days last October, applicants were allowed to mail in as many entry forms as they wanted. There were only three restrictions. Applicants couldn't be Communists. They couldn't be "highly communicable." And they couldn't be from Mexico. Or the Philippines. Or China. Or from any country other than thirty-three mostly white, mostly European nations chosen to participate. It is probably no coincidence that many of the excluded countries are the same non-white nations on which the United States had severe immigration restrictions before country-by-country quotas were abolished in 1965. And it is certainly not a coincidence that fully 40 percent of the 40,000 lottery winners have to be from Ireland. Edward Kennedy, who sits on the Senate's Immigration and Refugee Affairs Subcommittee, wrote the requirement into the bill.

Immigration law is excessively complex because Congress has no incentive to make it more simple. From the standpoint of Capitol Hill, there's no percentage in immigration. The people affected by the immigration laws aren't citizens, and non-citizens don't vote. Yet it wouldn't require a midnight session of Congress to reform the laws enough so that immigrating to America would become a less harrowing experience:

Split the agency in two. Even in the face of the INS's elaborate defense machinery, the number of people attempting to sneak into the United States these days isn't dwindling. While the estimated number of illegal immigrants declined between 1986 and 1988, a December INS newsletter reports that in the past two years, the numbers have once again hit pre-1986 levels. The number of illegal aliens in this country is now about 4.5 million.

Granted, controlling the borders is an impossible task. But in its zeal to catch every illegal, the INS regards everyone on the other side with suspicion. To the service, a legal immigrant is merely an illegal alien with papers. The logical way to ease the agency's internal conflict is to form two agencies: a true Immigration and Naturalization Service, concerned with assisting eligible applicants, and an Identification and Expulsion Service to police the borders and remove illegals.

Get rid of the forms. The INS could easily get by with one or two well-designed application forms. Current forms are endlessly redundant, requiring the same information line after line. The only purpose multiple forms serve is to justify the agency's fees -- which wouldn't be needed if there weren't so many forms.

Gut the immigration laws. Start by tossing out the lookout list, ending restrictions on AIDS carriers, and getting rid of all others you can't explain in one breath.

Reforming the INS not only would benefit legal immigrants, it would also bring closer to truth a chapter in American mythology. The agency that ushered millions of eager immigrants through the gates of Ellis Island and into the promised land has been transformed into an impenetrable army of cops and bureaucrats. The INS should at least try to live up to the "give us your poor" refrain.

Meanwhile, America's huddled masses can find the agency's new face reflected on TV. Recently, ABC bumped its long-running sitcom "Perfect Strangers," about a wide-eyed island immigrant who comes to America to live with his cousin. Taking over the same time slot is "Billy," a sitcom about a Scottish college professor whose visa runs out. In "Perfect Strangers," the foreign cousin finds family, adventure, and a beautiful American bride. In "Billy," the professor marries a student to avoid being deported by the INS.