By Kris Kobach, PhD, JD
ONE of the biggest - and least discussed - problems with the immigration bill now before the Senate is the sheer impossibility of implementing it.
The measure would triple the workload at the U.S. Citizenship and Immigration Services - an agency that the Government Accountability Office says is already at the breaking point. It's an invitation not only to fraud, but to any terrorist group or criminal gang that's looking to insert minions into America.
AT the center of the bill is the massive "Z visa" amnesty - whereby virtually all of the 12 million to 20 million illegal aliens in the country could become lawfully present, able to renew the visa indefinitely until they die.
To qualify, an alien must have entered before Jan. 1, and have remained in the United States ever since. Each applicant must also have a job or be the parent, child or spouse of someone who does.
Many of the bill's advocates claim the amnesty doesn't take effect until some future date - after the measure's border-security goals are met. Not true - at least, not in effect. The amnesty starts immediately - with the issuance of probationary Z visas.
And that qualifier means little: The probationary visa is nearly as good as the non-probationary one, giving the alien immediate lawful status, protection from deportation and work authorization the alien to work. He or she can exit and re-enter the country (with advance permission).
It will extremely hard for the government to prevent criminals and terrorists from getting these probationary visas. The bill allows the federal government only one business day to do a "background check" on each applicant.
The bill's authors seem ignorant of what this means in practice. The government has no single, readily searchable database of all the world's dangerous people. Much of the relevant information exists only on paper, while foreign governments are the source for other data.
NOR does the U.S. Citizenship and Immigration Services (USCIS) have the resources to implement an amnesty on this scale. Consider a few numbers.
On top of the millions of illegals already in the country, we can expect a mass influx of millions of new illegals arriving to fraudulently apply for the amnesty. Fraud won't be hard: To show they were "actually" here before Jan. 1, the bill requires USCIS workers to accept any bank statement, pay stub, remittance receipt or similar record - all easily forgeable.
This is exactly what happened with the 1986 amnesty. Hundreds of thousands streamed across the border to fraudulently apply. Caseworkers found 398,000 cases of fraud - and no one knows how much fraud went undetected.
So let's assume (conservatively) that 12 million illegals apply for the amnesty within the year allowed. Since the federal government is open for business 250 days a year, there will be an average of 48,000 amnesty applications every day.
USCIS now has about 3,000 "adjudicators" - the caseworkers who'd have to process the Z-visa applications. The Senate bill would only add 100 a year for five years - "subject to the availability of appropriations." And it wouldn't be easy to expand the force much faster, due to the difficulty of hiring and training new adjudicators.
So, we have 3,000 people hit with 48,000 applications a day. Of course, on some days - or in some offices - the number could easily double. And with each application, the adjudicator has only one day to determine if the alien is a criminal or a national security threat.
It gets worse. Those numbers assume that the adjudicators aren't already busy. In fact, they're swamped.
IN FY 2005, USCIS received 6.3 million applications - on top of a backlog of several million unresolved applications.
The agency is stretched to the breaking point, according to a 2006 study by the federal Government Accountability Office. That report noted that, because adjudicators must go through so many applications for benefits (for green cards, asylum and much more) every day, they spend too little time scrutinizing them. As a result, the GAO concluded, failure to detect fraud is already "an ongoing and serious problem."
The back-breaking workload results in what the GAO calls a "high pressure production environment." It is widely known that an unofficial "six-minute rule" applies - spend no more than six minutes looking at any single application.
It's a bureaucratic sweatshop. Adjudicators told the GAO that their managers were consumed with meeting "production goals," driving the workers to process applications too quickly and increasing the risk of undetected fraud. Cash rewards are even given to the adjudicators who can work the fastest.
As a result, USCIS doesn't even bother to do commonsense verification with outside agencies - for example, calling a state Department of Motor Vehicles to see if two people claiming to be married actually live at the same address. Such scrutiny would take too much time. Many managers actually discourage caseworkers from seeking more info from aliens who submit suspicious applications.
If they won't call an American DMV, how can we expect the agency to contact local officials in Colombia to check for a criminal record?
Meanwhile, the pressure of the one-day time limit for background checks would force all amnesty applicants to the top of the pile. So much for the promise from the bill's authors that "illegal aliens will go to the back of the line."
THE USCIS is already dangerously overburdened and unable to effectively detect fraud. Yet the Senate bill would triple the incoming workload - adding 12 million amnesty applications on top of the 6 million or so the caseworkers already have to handle each year. (By the way, the 12 million amnesty recipients would have to come back every four years to renew their Z-visas, too.)
Last year, with a similarly huge amnesty on the table, USCIS officials said the agency might well contract out the amnesty work to people who'd get receive only a few weeks of training. And there would be no time to do background checks on the contract workers, themselves. That's no way handle American security.
Either way, the six-minute rule would have to become a three-minute rule, or possibly a two-minute rule. Fraudulent applications would sail through by the millions.
It's a recipe for bureaucratic collapse.
Kris W. Kobach is a professor of law at the University of Missouri-Kansas City. As counsel to the U.S. Attorney General, 2001-03, he was the attorney general's chief adviser on immigration law.
