When I was a young lawyer, I developed the first immigration law web site. That was in 1994 and I recall that the old Immigration and Naturalization Service (INS) (which split up and became US Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) took a good four years after I created Visalaw.com to launch their own web site. And it was literally just a photo and biography of INS Commissioner Doris Meisner. The lack of forward thinking on the part of the INS was my first impression of the agency when it comes to its online offerings and it depresses me that decades later their online offerings are virtually non-existent and almost everything we immigration lawyers file with the agency is still by paper.
How is it possible that the IRS has been accepting e-filed tax returns since 1986 and USCIS is largely in the Stone Age? The agency has been promising genuine electronic filing is around the corner for twenty years and yet in 2020, of 102 USCIS forms available on the agency’s web site, only 11 can be filed electronically.
It’s not for lack of spending. The investigative web site Pro Publica published an explosive story in April 2017 which revealed that USCIS had blown billions of dollars into a digitization and filing system that never got off the ground.
According to USCIS records, congressional testimony and interviews with former agency officials, USCIS has plunged most of the expedited program’s revenues from the last eight years — some $2.3 billion — into a failed effort to digitize the larger immigration system, leaving inadequate resources to staff the H-1B portion that was its cash cow.
“I can’t believe that my old agency could be that stupid and reckless,” said William Yates, a former senior USCIS official who helped create the fast-track program. “It infuriates me.”
The system in place now has basically the same minimal functionality it did ten years ago. A new form is added here or there, but the system is barely used, particularly by immigration lawyers who collectively are the agency’s biggest customer when it comes to filing applications. The reason for that is fairly clear: the USCIS online filing system is not an open API system and the case management systems immigration lawyers rely on to store their client data cannot “talk” to the USCIS online filing system. That means all the information stored in those systems has to be manually retyped into the USCIS web site resulting in a lot of wasted labor and, ultimately, higher fees, for clients.
Retyping forms isn’t an inconsequential amount of labor, by the way. For many types of petitions, law firms can be filling out well over a hundred pages of form pages.
The IRS figured out decades ago how to allow private software companies to electronically push tax returns to the IRS e-filing system.
But that assumes that lawyers can even file the applications they need online. And right now, only three forms are even available, a tiny fraction of the forms required, one of which can only be filled out by the client so really, we’ve got two.
The consequences of not having e-filing are more than just inconvenience for people. USCIS spends billions of dollars on outside contractors in its mailrooms, handling millions of pages of paper every year. Contractors have to manually type data into their own case management systems and mistakes are often made. Sometimes those mistakes result in people losing their immigration status and ultimately ending up removed.
USCIS also has a nasty new policy of denying applications when fields on an application are left blank even if those fields are completely inapplicable. Here’s a real-world example from the I-589 asylum application form. An applicant was actually rejected because they didn’t fill in the requested addresses – for their dead relatives.
With a properly designed e-filing system, this wouldn’t happen because the system would either be configured to not provide an address field if the “deceased” box is checked and for other fields left blank, the software could prevent an applicant from advancing unless the person affirmed that the question was “not applicable” or completed it in an “appropriate” way.
Another common problem that would be prevented is applicants sending in the incorrect fee. USCIS requires applicants to manually calculate the correct fee and that’s not always such an easy task. An application for adjustment of status for a family of two parents and three kids, has five sets of fees for each of the fee-requiring forms as well as separate biometric fees for each. And fees frequently change. Someone who prints out the fee list and sends the check with the forms may be surprised to find out the fee changed in the day or so after they printed out that list. With e-filing, these problems are avoided because the software will calculate the fee amount and the person would then pay via credit card or online bank draft.
It can also be really confusing when it comes to WHERE to file a case. The instructions for where to file an H-1B petition, for example, are 12 pages long. Even experienced law firms sometimes have packages rejected because they are sent to the wrong place and that’s a very common problem for people filing relatively simple applications on their own. An e-filing system would obviously end that problem and save people a lot of aggravation.
USCIS did have an e-filing success in 2020 that’s worth mentioning. The agency switched to an electronic registration system for the annual H-1B lottery. While there are concerns about whether this system has policy implications like making it easier large IT contractors to “game” the system by being able to file massive numbers of applications and thus reducing the odds for everyone else, the actual functioning of the system went fairly smoothly. In part, because USCIS allowed for beta-testing by attorneys and employers who would be using the system. The impact was enormous. In the past, hundreds of thousands of full applications were submitted by mail by immigration lawyers on behalf of their employers in a single week. USCIS had difficulty handling the load and employers wasted enormous amounts of time and money filing applications that were ultimately going to be tossed in the garbage. Under the new system, considerably less work goes into registering and USCIS can deploy its resources a lot more efficiently.
All this is to say that while President-elect Biden has one of the most detailed immigration plans in history, it is completely silent when it comes to the need to technologically modernize the immigration system. There’s a great section entitled “Modernize America’s Immigration System” yet, there is no mention of anything related to technology.
The plan should set a deadline for fully implementing an e-filing system within two years that has the capability of submitting any forms and allowing lawyers to submit those forms via approved case management systems (like the IRS does). But it’s not just the IRS. Nearly every federal agency as well as the federal court system have e-filing for years. This is not rocket science and there is no excuse for why we’re still waiting.
But one caution here. The agency that blew $2.3 billion of fee money on a failed digitization effort shouldn’t just get to blow the money again. The US Digital Service was created under the Obama Administration to help the federal government move into the online age. That agency should be managing the technology modernization efforts at the various immigration agencies. I was pleased to see that a number of USDS alums from the Obama Administration are on the Biden transition team.
Finally, if anyone from the transition team or who will be part of the new Administration’s immigration agencies happens to be reading, I have a simple plea – Please let immigration lawyers and other stakeholders participate in the development of your online products. Years ago when that $2.3 billion was being spent, I attended a meeting at USCIS headquarters with a group of immigration lawyers to discuss the agency’s e-filing initiative. I asked how alpha and beta testing was happening and whether immigration lawyers might volunteer in such efforts. The answer told me quite a bit about why the effort was destined for failure. The USCIS officer’s response was that they used their own employees to role play as applicants. And that lack of customer involvement in the process is apparent. Let’s finally get the USCIS digitization train back on track.
AILA recently held the 2020 AILA Technology and Innovation Virtual Summit; recordings are available here.