USCIS Director Edlow Can Restore Integrity to the Immigration System

The immigration system is crushing American workers' bargaining power through foreign labor dumping. Crucially, this is not simply a problem of illegal immigrants being exploited in the black market for labor. Recent media reports expose how H-1B visas are being abused to hire cheap foreign labor at a discount of tens of thousands of dollars and how companies actively hide job listings from Americans. The H-2A program is rife with slavery, debt bondage, and other assorted egregious exploitation. Our legal immigration system has been twisted into a corporate concierge service, bending over backward to rubber-stamp “customers” who are harming American workers. Joe Edlow, President Trump’s recently confirmed nominee to head the United States Citizenship and Immigration Services (USCIS), is the right man to restore integrity to our fallen system and place American workers at the forefront of policy-making. 

USCIS is not nearly as (in)famous as its sister components within the Department of Homeland Security (DHS). Yet its role in vetting and authorizing millions of alien applicants for the multitude of visas and employment authorization documents (EADs) available under our laws is vital to the public safety and economic security of Americans. It is at USCIS where American workers see tons of cheap foreign labor replacements waved in with a smile. It is USCIS that could deny future terrorists—like the antisemitic terrorist who burned Holocaust survivors alive in Boulder, Colorado—a chance to slip into our country. 

Every story about slavery in the H-2A visa program or American workers being forced to train their replacements in the H-1B program begins with USCIS authorizing an employer to import a foreign worker who will either become a victim or victimize an American. One of the reasons why USCIS does not vet applications properly is an ideological interest in seeing and hearing no evil, but there are also fundamental, practical reasons for the abject failure of the agency. Namely, Congress has created far too much work for them to hope to adequately vet and protect alien or American workers. 

The backlog of applications (excluding cases where USCIS is waiting for information from the applicant) for USCIS was sitting steadily at approximately 2.4 million cases from FY17-FY19, before doubling by FY22 to 5 million backlog cases. By FY23 the number of backlog cases was reduced to approximately 4.3 million cases. Unfortunately, the Biden Administration achieved this reduction by simply issuing blanket extensions for benefits to clear the cases. 

USCIS also began to focus limited resources and personnel on prioritizing EADs and parole applications for illegal aliens over their statutory work. In other words, the Biden Administration dug a massive hole by creating illegal discretionary parole programs that they opened to millions of applicants. The administration and agency, whining about limited resources, were concurrently creating millions of new applicants to create additional work for themselves. 

With millions of backlog cases, in addition to the millions of recurring applications annually, USCIS has no ability to adequately vet applications as required. This is a clear and present danger to aliens and Americans alike. 

As evidence of their dereliction of vetting duty, look at the USCIS policy to defer to previous determinations. This policy directs personnel to defer to previous determinations for extension requests regarding the same parties and facts. This is designed to speed through approvals, but makes no sense for a DHS vetting agency. Whether a mistake was made in the initial approval (in an approval process that is virtually a rubber stamp), or whether material facts have changed, the agency will extend the original decision in perpetuity, as a matter of policy. 

The Fraud Detection and National Security Directorate (FDNS) at USCIS is vital in the vetting effort, yet USCIS has never prioritized its work. This is, in part, because the workload is too massive, and vetting would exacerbate their backlogs and frustrate their ideological policy preferences. While USCIS accepts millions of applications annually, FDNS only closes thousands of fraud investigations. The statistical possibility of a fraudulent applicant being caught by USCIS is thus almost zero.  

The Government Accountability Office (GAO) found in 2022:

“USCIS uses a staffing model to estimate the number of Immigration Officers needed to handle FDNS's projected workload. However, the FDNS staffing model's assumptions do not reflect operating conditions. Also, due to inconsistent data entry practices, the data used in the staffing model do not accurately reflect FDNS staff workloads. Conducting additional analyses to identify factors that affect FDNS's workload and issuing guidance to clarify data entry practices would improve the accuracy of the staffing model's estimates.”

And GAO also found:

“USCIS has conducted fraud risk assessments for three immigration benefit types in response to prior GAO recommendations. However, USCIS does not have a process for regularly conducting these assessments because no USCIS entity is responsible for leading them. Implementing a process for conducting fraud risk assessments would help FDNS better understand its fraud risks. In addition, while FDNS has documented some of its antifraud activities, it has not developed an antifraud strategy to guide their design and implementation and the allocation of resources to its highest-risk areas. Implementing a process for developing an antifraud strategy could help FDNS ensure that it has an appropriate balance of antifraud activities to address its fraud risks.”

Does this sound like an agency focused on vetting and the integrity of the system? Millions of cases are backlogged, the agency is creating discretionary programs to add more work to an overworked staff, and no anti-fraud strategy or lead fraud component to conduct assessments has been assigned in decades. This is how we end up with slavery, wage theft, discrimination against American workers, and assorted other fraud and abuse in the legal immigration system. The engine is flooded. 

A 2023 GAO report on the corrupt-to-its-core EB-5 “investor visa” found USCIS asleep at the wheel, even in this most corrupt of programs:

USCIS collects some data on EB-5 fraud and national security concerns that it investigates. However, it does not have readily-available data about the types and characteristics of fraud unique to the program, such as those related to schemes to defraud investors. Systematically collecting and tracking this information would help USCIS better monitor, assess, and respond to evolving fraud trends and risks. Further, the EB-5 Reform and Integrity Act of 2022 gives USCIS new denial and termination authorities to address fraud and national security concerns. However, USCIS does not collect data on the reasons for (1) denying EB-5 petitions and applications, and (2) terminating Regional Centers. Developing a process to collect and assess these reasons would provide USCIS with valuable insight into program risks.

This is an agency that eschews its law enforcement role as a component of HOMELAND SECURITY. That’s because they speedily approve as many applications as humanly possible, though the heavens may fall. 

Without belaboring the point, a 2019 GAO report found USCIS not conducting adequate vetting for the Violence Against Women Act (VAWA) self-petitioner program that was exponentially growing AND an acknowledged fraud risk:

“According to USCIS officials, the self-petition program is vulnerable to fraud, such as self-petitioners’ use of false or forged documents. USCIS has adopted some, but not all, of the leading practices in GAO’s Fraud Risk Framework. While USCIS has established a culture and a dedicated entity to manage fraud risks for the program, it has not fully assessed fraud risks and determined a fraud risk profile to document its analysis of the types of fraud risks the program could be vulnerable to. Further, the number of self-petitions filed has grown by more than 70 percent over the past 5 fiscal years.”

Into this breach arrives Mr. Edlow, who headed USCIS at the tail end of President Trump’s first term in 2020. Mr. Edlow oversaw the promulgation of great regulations on the H-1B program, which allocated visas based on wage level offered, rather than a random lottery. During his confirmation hearing, Mr. Edlow testified to the Senate that he would like “to remove the ability for employment authorizations for F-1 students beyond the time that they are in school.” This would end the illegal Optional Practical Training (OPT) program. He understands the downward pressure on wages for American workers that occurs by flooding the labor market with cheap foreign workers. 

As a veteran of the first Trump Administration, Mr. Edlow knows the policies needed and the potential pitfalls in his path. USCIS is an agency in crisis from any common-sense perspective. It has approved employment visas for slaves and authorized the replacement of American tech workers with cheap foreign workers. GAO has repeatedly found USCIS failing to take fraud seriously, even when it knows specific programs are rife with it. 

With such dire circumstances, I both congratulate Mr. Edlow for his swift confirmation and offer him my sympathies. Luckily, his good work from the first term can easily be dusted off and offer him a good foundation for future revolutionary reform of the agency. He should publish the USCIS 2020 H-1B regulations swiftly with an addition to bar third-party employment. That alone will remove a massive fraud vulnerability within the H-1B program. 

He can also ease the overwhelming paperwork burden at USCIS by simply ending all discretionary programs for EADs. From FY11-FY18, USCIS reported approving around one million totally discretionary EADs for aliens. This is in addition to all the EAD issuances required by law for aliens. These discretionary categories include, but are not limited to:

• Applicants for Adjustment of Status (over 200K approvals annually);
• OPT (Over 100K approvals annually); and
• H-4 spouses of H-1B aliens (40-50K annual approvals).

With a stroke of his pen, Mr. Edlow could wipe away millions of cases and allow USCIS to focus on the mission of doing the job Congress gave them as opposed to their own ideological mission. It cannot be overstated how much the overwhelming workload is pressing USCIS to automatic extensions and deference to prior approvals to clear cases. The fact that American workers would also benefit from removing cheap labor competition in the bargain makes the policy move a no-brainer. 

When you are in a hole, the first step is to stop digging. Mr. Edlow has much work to do before USCIS is a functioning law enforcement agency protecting the Homeland and the American workers within it. However, with courage, he can stop digging the hole, and even start filling it in. Ending the mountains of work required to vet EADs unauthorized by Congress, denying the pending discretionary EAD applications, and refunding any fees would instantly reduce the backlog faster and with far less pain than the Biden Administration’s rubber-stamp autopen policies. Every day, USCIS is laboring under the old policies of mass approval of illegal program applications to the detriment of public and economic safety for Americans. Joe Edlow is the cleanup crew.