Memo to DOGE et al. In Re: Waste, Fraud, Abuse, and the Immigration System

Elon Musk and DOGE simply must meet the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS). The mission of FDNS is to combat fraud in our legal immigration system, but the Directorate has never been sufficiently empowered. DOGE is looking for low-hanging, fruitful investigations to expose government fraud, and they need to look no further than the United States immigration system. President Trump’s Executive Order to eliminate subsidization of illegal immigration has called for the Office of Budget and Management (OMB) and DOGE to examine Federal subsidies for illegal immigration. The only trouble is I do not know where to start on giving them leads.

The legal immigration system of this country has largely been treated with the same contempt for the rule of law as USAID. When the American people discover the fraud and failures of the legal immigration system, they will call for a moratorium until a new system is built from scratch. And make no mistake, much of the fraud of the legal immigration system accrues to illegal immigrants and subsidizes illegal immigration. No matter where you look in the immigration system you’re going to find fraud. 

Just last year, USCIS made regulatory changes to the H-1B visa program due to widespread fraud. Employer petitioners were colluding and conspiring to flood the zone with multiple petitions for the same employee(s) to game the lottery system by which H-1B visas are awarded. It was so blatantly obvious, since USCIS was breaking all records for H-1B annual petitions even as the tech sector was laying off Americans in large numbers.

An investigation into universities behind Optional Practical Training (OPT)—a program never authorized by Congress—found mass fraud, with shell companies selling admissions letters to foreign workers. The DHS Ombudsman has been ringing the alarm bells about fraud indicators and national security vulnerabilities within OPT for years. From the Ombudsman [editor notes and emphasis throughout]:

“ICE is largely dependent on DSOs [i.e. education administration officials] to properly maintain student information in SEVIS [the Student and Exchange Visitor Information System], even if that means obtaining information from students well after graduation, and to report violations. Both SEVP [Student and Exchange Visitor Program] and DSOs are leanly staffed yet have a significant set of responsibilities. SEVP works in the field through its representatives. ICE indicated in January, 2020, that for the approximately 9,000 certified schools, divided into approximately 60 regions, there is roughly 1 representative for each region. That SEVP representative is responsible for site visits to schools (potentially hundreds, depending on the region) at least once each year, reviewing records and ensuring schools comply with program requirements and regulations.” 

It does not end with OPT. The Economic Policy Institute (EPI) found the Department of Labor set a new record low for new wage and hour investigations on farms, and that labor investigations dropped 60 percent from 2000 to 2022. Meanwhile, H-2A visas for farmers have roughly quadrupled in that same time. As legal foreign workers have expanded in agriculture, government oversight has disappeared. 

Between OPT, H-1B, and H-2A, you have three of the largest employment visa programs in the country. All of them are known to be rife with fraud by the government. DOGE, partnering with and empowering FDNS, will find a treasure trove of fraud because abusers of these visas have been brazen. There has been no reason to even cover their tracks. 

Here is what the Government Accountability Office (GAO) said all the way back in 2002:

“Immigration benefit fraud is a significant problem that threatens the integrity of the legal immigration system. Aliens apply to the Immigration and Naturalization Service (INS) [the precursor to DHS] for such benefits as naturalization, work authorization, and adjustment of status. Immigration benefit fraud involves attempts by aliens to obtain such benefits through illegal means (e.g., using fraudulent documents). INS officials believe that the problem is pervasive and serious; they also believe that some aliens are using the benefit application process to enable them to carry out illegal activities, such as crimes of violence, narcotics trafficking, and terrorism. In its fiscal year 2000 Threat Assessment, INS predicted that immigration benefit fraud would intensify as smugglers and criminal enterprises searched for other methods to bring illegal aliens into the United States.” 

It seems every enforcement trendline has been dropping negatively relative to the increase in the use of immigration programs. The massive number of aliens admitted legally into the United States has overwhelmed the meager resources dedicated to oversight, fraud detection, and sanctions. Does anyone want to bet that the legal immigration system has been run with high integrity since 2002, as overall immigration applications have steadily increased? 

Spoiler alert for Elon and the DOGE boys: none of the departments with enforcement equities in immigration coordinate all that much. No one supports their mutual interests in enforcing immigration law for the betterment of society. Instead, they view the issue as being like hungry dogs at dinner; there is mine and yours. “Jurisdictions” and “silos” are the words of the day across all of the government. 

That means agencies like FDNS and ICE Homeland Security Investigations (HSI) are not fully linked up and down the chain of command. You might think FDNS is seeking out trends of immigration benefit fraud and sharing their information and leads with DOJ, State, DOL, and especially their own internal partners at ICE and CBP. Instead, DHS enforcement authorities are treated like second-class citizens in government, even among each other. Most actionable and timely intelligence is either never seen at all or is buried quietly at one respective investigative arm of the government. 

This is where DOGE can assist by functioning as a WH-level coordinator of this immigration enforcement diaspora. Simply unifying their attention and sharing information will significantly enhance their effectiveness. One recommendation I have for DOGE is to look at some of the more automated areas of legal immigration. By “automated,” I mean the auto-pilot programs and operations that run with minimal political oversight or involvement. 

This includes the Field Operations Directive (FOD) at USCIS. The FOD has spent its time creating an assembly line of rubber-stamping applications to deal with their overwhelming workload. Staff are rewarded for pushing paper quickly. However, if everything is based on ruthless efficiency, asking questions and fraud investigations are forbidden. The receipts for the fraud of the Biden Administration on parole and employment authorization reside at the FOD.

A note on the FOD and remote work. DOGE has an axe to grind with remote work that you do not have to embrace to understand the dangers of remotely processing and adjudicating immigration benefit applications and petitions. USCIS and the FOD are no different than other parts of the government in transitioning almost exclusively to remote work and remote processing of benefit applications. Fraud is more likely the more attenuated the fraud is to enforcement eyes. Some things that seem plausible for the sake of efficiency are devastating to the integrity of the system. In-person interviews are essential to detecting fraud. Similarly, mailing immigration documents, rather than requiring in-person pick up, invites fraud. DOGE should examine all the FOD policies, practices, and procedures that prioritize convenience and speed at the expense of integrity, fraud detection, and national security. 

Another danger zone is the Office of Foreign Labor Certification (OFLC—apologies for all the acronyms, but this is how they blind us). The OFLC runs the Foreign Labor Application Gateway (FLAG) and the Permanent Employment Certification (PERM). With all the fraud we know of in H-2A, H-1B, and H-2B, how did OFLC certify slavers and wage thieves consistently for foreign labor?

How is the CBP Office of Field Operations (OFO) escaping scrutiny? The OFO is the last stand for fraudulent legal immigration. If you trick State, Labor, and USCIS, there is still the trusty OFO to…wave you in with a rubber stamp, apparently. OFO, like FOD and OFLC, are vastly overworked. The system has TOO MANY alien benefit applications and petitions to be securely processed. However, OFO is another location where primacy is on processing efficiency. All policies, procedures, decisions, and actions are made with the ultimate goal of swift resolution. You may see no concern with prioritizing speedy resolution, but you must acknowledge the cost of that pursuit is allowing fraud. Each of these agencies I’ve identified have sacrificed the integrity of the immigration system at the altar of speed of resolution. OFO, and CBP more broadly, are a major impediment to the implementation of the Congressionally-mandated (in ‘96) biometric entry-exit system to help end visa overstays, as just one example of the price of speed over integrity in the long run. 

DOGE should also pay keen attention to the State Department Foreign Affairs Manual (FAM) and USCIS form revisions process. These are very impactful, but neither go through notice and comment rule-making. That means they can be changed relatively quickly with no oversight. 

The State FAM provides guidance to Consular Affairs staff on how to evaluate applications for visas. This is important because if the State Department rules an alien inadmissible, they cannot appeal the decision. If the State Department honestly and fairly applied the INA inadmissibility statutes, many of our problems would be over. 

As for USCIS forms, every immigration benefit has its own forms for applicants/petitioners. USCIS has a regularized periodic review and revision process for all forms it accepts. The forms ask for identifying information from the applicant along with other relevant requests for information related to the particular benefit sought by the alien. Forms are revised regularly, as practitioners know all too well. However, form changes do not go through notice and comment rulemaking. You will not see much Congressional oversight of form changes either. This whole process is highly impactful on the day-to-day operations of the massive legal immigration system, and yet it has never been subject to much scrutiny. 

President Trump has requested OMB and DOGE to come up with a report in 30 days identifying all Federal funding of illegal immigrants and recommendations to align Federal agency practices with the EO barring subsidizing of illegal immigration. I encourage DOGE to look at the Internal Revenue Service (IRS). The Refundable Child Tax Credit allows illegal immigrant parents to receive the benefit for American citizen children. All the IRS would have to do is require a valid Social Security Number (SSN) from both the parent and the child to qualify for the tax credit. This would discourage a direct cash incentive for birth tourism and the use of anchor babies. 

According to the Institute on Taxation and Economic Policy, 10 states plus Washington D.C. have expanded their local refundable child tax credit to aliens without SSNs. This is something of a State “sanctuary” policy for illegal immigrants though this is a sanctuary from tax policy. The IRS also allows foreign students working in the United States and their employers to be exempt from payroll taxes. This makes these aliens far cheaper to employ than American workers. It is inexplicable for foreign student workers in OPT to get such a competitive tax advantage against American graduates. It is all the more frustrating because foreign students should be leaving the United States at the conclusion of their studies, as their visa requires. OPT is authorized visa overstay for the purpose of tax-advantaged cheap labor for employers. One way DOGE can help implement President Trump’s EO is to stop subsidizing visa overstay, which accounts for many illegal immigrants in the United States. They should also closely look at the infuriating political exploitation of our “humanitarian” immigration benefits. Under the guise of compassion, visas like the T and the U are offered. The easy path of crying wolf and receiving unexamined benefits is a tale of fraud as old as crime. 

DOGE should already be on the case, but for the record and from the rooftops, discretionary employment authorization documents (EAD) for illegal immigrants in the country are a public benefit. EADs are a privilege (aka benefit) and government issuance of EADs is the single public benefit motivating much of the illegal immigration we have seen. Mandatory E-Verify combined with DOGE ending the mass public benefit of EADs for illegal immigrants would destroy subsidies for illegal immigration. It is important to note that the government’s discretionary issuance of EADs to illegal immigrants provides those who enter illegally advantaged status compared to aliens who enter legally for employment. While most legal nonimmigrant temporary workers are restricted to working for their employer/sponsor, illegal immigrants granted the public benefit of EAD have open access to the entire labor market. Current EAD policy, in other words, actually incentivizes illegal immigration for employment over seeking legal pathways. 

I know there are some differences between Elon and those of us who prefer America First immigration policies. However, he could be a great ally when he applies his DOGE principles to the current legal immigration system. While USAID may be the welfare for progressive NGOs, the legal immigration system has functioned as welfare for unscrupulous American employers. You could reduce government personnel, resources, and office space simply by restoring integrity to the immigration system and holding violators accountable to the fullest extent of the law. DOGE has our support in that effort.