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The Highly Specialized “Learning Curve” Factor In Immigration Adjudication,   Enforcement, and Legal Practice; As Well As ...
Different People Learn Differently:An old saying in Real Estate is that the three most important things to consider are: “...
and educate their affected publics through Customer Service Representatives’ informationdissemination efforts as well as t...
of aliens, and a wide array of immigration and nationality issues under the law favors the use ofqualitative analysis rath...
   At the time of the I-751 filing or at a point before it was adjudicated, the child was               at least 14 years...
(1) The term ``child means an unmarried person under twenty-one years of age and includes achild legitimated under the law...
(F)(i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord aclassification as an imm...
(aa) the competent authority of the foreign state has approved the childs emigrationto the United States for the purpose o...
In the private sector, the same situation will often arise when a client first seeks representationfrom an attorney or BIA...
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Customer service issues for immigration professionals

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Customer service issues for immigration professionals

  1. 1. The Highly Specialized “Learning Curve” Factor In Immigration Adjudication, Enforcement, and Legal Practice; As Well As Its Affect On Customer Service Delivery By Joseph P. WhalenIntroduction:On June 29, 2011, USCIS Customer Service Directorate issued a Request for Information (RFI).The RFI indicates that USCIS is looking at the issue of revamping it Customer Service Deliverymodel with an open mind, in fact, stating that it is “not wedded” to the current model. This isrefreshing. Currently, USCIS uses a “traditional” call center and also has INFOPASS for face-to-face inquiries. In addition, a wide range of e-mail addresses are found on the website and thereare regular stakeholder teleconferences and outreach efforts happening all over the country withmore frequency. This concerted effort has not gone unnoticed and has been given modest praiseeven if not much glowing praise. Immigration customer, practitioners, and advocates are veryhard to please, so any reduction in bad-mouthing can be translated as praise from this crowd andany positive comment is akin to very high praise.A large percentage of simple case status inquiries will soon be even further mitigated with amove to an electronic account-based filing and case processing and tracking environment. Iffewer trivial case status inquiries fall out of the mix, then the call center personnel can spendmore time talking to people about more substantive issues. This may be welcomed by thecustomers if handled well. My concern is that the staff may not be up to the challenge. Peoplewho have become accustomed to sticking to a script are at a disadvantage and so are thecustomers who are directed to them by random chance via automated telephone routing muchlike playing Russian Roulette with their immigration case.After all the time that the call centers have been in existence, they should have a fairly good ideaof the types of inquiries they can expect. As I understand the call centers as indicated in the RFI,Tiers already exist. However in order to reach a human being, the caller must suffer through aseries of menus first. I would shorten the automated menu down to the subject matters that makeup the largest majority of legal information questions and save a catch-all as a last resort. I wouldhave the various limited choices queue the callers to banks of well educated and trained subjectmatter experts. Only when the queue is empty would “other” more lengthy “queues” be providedassistance from idle secondary subject matter phone banks. I would wait a little longer in adedicated queue in order to speak with someone who could actually provide better answers thanmerely getting through quicker to someone who did not have the required knowledge-base to beof any real use to me. The less qualified contract customer service representatives would needfurther training in order to keep their jobs or be lucky enough to be hired as ISO’s and get theadditional training required in order to be effective. USCIS will need to decide if they willprovide more intense training to contract employees or hire more direct employees. It seems likea budgetary issue to me. Spend it on a contract or train more new ISOs. Page 1 of 9
  2. 2. Different People Learn Differently:An old saying in Real Estate is that the three most important things to consider are: “location,location, location”. What then might one say about immigration law, that is, adjudication,enforcement, and legal practice? How about: the three most important things are: “training,training, training”? How about: “education, education, education”? How about: “planning,planning, planning”? How about: “promotion, promotion, promotion”? How about the fourmost important things in Immigration Law are: “planning, training, promotion, and education”?Two of these factors are very similar: education and training. They are overlapping yet stilldistinct. The other two important items in my philosophy, planning and promotion, are alsosimilar yet distinct. They are heavily “behind-the scenes” activities that support the first twoitems.Education v. Training:Everyone who will have anything to do with it has to be educated in the longstanding underlyingbasics of the immigration laws as well as on changes to the existing laws as quickly as ispractical. It is also a truism that everyone involved in immigration law adjudication,enforcement, or practice would benefit from training on the existing aspects and nuances ofimmigration law through periodic refresher or remedial courses. This could include directedreadings, self-directed research, and independent-study, as well as supplemental highlystructured and focused, specific formal training on changes as they occur in order to endeavor toachieve uniform understanding and application of the law. This will enable accurate uniformdissemination of information.There is some overlap regarding who needs education and training. As to education, the affectedpublics: benefit applicants, petitioners and beneficiaries; and the practitioners who will servethem need the “education”. Legal professionals have outside educational institutions, trainingsessions, and CLE opportunities. DHS (USCIS, CBP, & ICE) and DOJ (EOIR/BIA/ OCAHO,OSC-CRT, OIL etc...) have their respective parts to play. The government must first, interpretthe laws and then promulgate rules and regulations as well as precedents and other interpretiveguidance documents, their policy positions, and statements thereof. Customer Service helps todeliver this information to the affected public that have little or no other means of gettingeducated on immigration and nationality law. To this group, self-education may only extend toasking for help from USCIS Customer Service Representatives.Planning v. Promotion:The government enforcers of laws are obligated to tell their affected publics how they willenforce the laws. The government is in the best position to promote an understanding of the law Page 2 of 9
  3. 3. and educate their affected publics through Customer Service Representatives’ informationdissemination efforts as well as the other outreach efforts mentioned above. It is also theresponsibility of the government agencies to train their own adjudication and enforcementprofessionals to apply the law correctly and uniformly. None of this is in any way describable asa simple task and the necessary concerted efforts require often complex and hopefully competentadvance planning.In order for the government actors to promote their interpretations of the laws and educate theiraffected publics, they must first do their own homework and plan for the training of their ownemployees. This is an important aspect of the “learning curve” factor. All this planning &training by and for the government agencies’ employees, as well as, promoting & educating toand of the affected publics, does not happen all by itself overnight. This is where anunderstanding of the learning curve is most helpful.The Immigration Law Learning Curve:Generally speaking, all patterns of learning display changes over time. Sometimes we findourselves faced with incremental change however, other times one must deal withrevolutionary change. In complex systems generally, and in immigration law specifically, thislearning curve consideration relates to innovation, organizational behavior and especially forthis discussion: the management of group learning.At its most basic, a “learning curve” expresses the fact that the more times a task has beenperformed, the less time will be required on each subsequent repetition until reaching a plateauor equilibrium. This is both on an individual basis as well as an institutional level, the formerbeing the basis for the latter.Numerous empirical studies from a variety of industries for over a century have yielded differentvalues or rates for learning curves ranging from only a couple of percentage points up to 30percent, but in most cases it is a constant percentage that does not vary at different scales ofoperation. Immigration law in its vastness and complexity may be an exception that proves thatrule.The term “learning curve” is most commonly used to focus on the learning patterns negativeaspect, namely the difficulty of learning once one gets beyond the basics of a subject. The realmof immigration law is far from a simple basic subject to master and thus not amenable to easy oraccurate quantification of an across-the-board learning curve. The subtle nuances, tandem andcontrasting dichotomies, varying burdens of evidentiary proof as to eligibility and qualifications,the balancing tests for an exercise of discretion, as well as the harsh and often bizarre treatment Page 3 of 9
  4. 4. of aliens, and a wide array of immigration and nationality issues under the law favors the use ofqualitative analysis rather than quantitative.A learning curve is often expressed mathematically in a formula and graphically presented as an“S-Curve” representing the changing rate of learning (in the average person) for a given subjectmatter or task. Typically, the increase in retention of information or attainment of skills issharpest after the initial attempts, and then gradually evens out, meaning that less and less newinformation can be retained, or skills attained/sharpened, after each repetition. This is notnecessarily true in a complex subject such as immigration and nationality law where learning iscumulative and interconnected rather than discrete. Some folks may indeed reach a plateau andsort of crap-out in terms of how much more they can learn. Different individuals will peak atdifferent points. Once one’s head is crammed full something may get discarded or buried inorder to make room for more and/or newer information. Some folks in the business world willrecognize this as the Peter Principle whereby, one will rise to their level of incompetence.The learning curve can alternatively represent an individual’s initial difficulty of learningsomething new and, to an extent, how much there is left to learn after initial basic familiarity orproficiency has been achieved in a subject or task. Tasks for Customer Service Representativeand Immigration Service Officers involve not only looking things up in a plethora of computerdatabases but also interpreting what they find there. In order to do this effectively, a deeperunderstanding of the pertinent laws is required. A well-trained immigration professional willoften need to be able to look up the law. So the skills required in order to perform that task mustnot be ignored when training these folks to disseminate accurate information while tackling asubstantive inquiry. Look up an A# in the Central Index System (CIS) and see what it tells you. Someone immigrated as a CR-2 and their code of admission was later changed to TR-2 however their 9101 screen in CIS also displays a single A (or DA) certificate number, explain.  An adopted stepchild who had not yet been in the legal and physical custody of the adoptive USC stepparent for a full two years (as required under INA § 101(b)(1)(E)(i) as incorporated by reference in INA § 101(c)(1) in order to immigrate as an adopted child) immigrated along with the other parent.  The USC’s new spouse (the child’s parent) and the USC’s stepchild were both admitted as conditional residents.  The child subsequently automatically acquired USC under INA § 320 as an adopted child upon completion of the two-year custody requirement with the USC adoptive parent.  The parent filed an N-600 in order to get the child a Certificate of Citizenship.  The citizenship issue was independent of and superior to the child’s initial admission in CR status.  The conditional resident parent might not have successfully removed conditions OR did have conditions removed BUT the child was not included on the I-751. Page 4 of 9
  5. 5.  At the time of the I-751 filing or at a point before it was adjudicated, the child was at least 14 years old and since (s)he was not fingerprinted in connection with the I-751 could not have conditions removed by virtue of his or her parent’s removal of conditions.  Someone who did not understand that the child was already a USC and therefore did not require any action to remove conditions terminated the child’s status in CIS.Incremental Change v. Revolutionary Change:Immigration law seems only to get more complex over time. Immigration law tends to constantlygrow incrementally in a piecemeal fashion for long stretches of time. This reality makes itdifficult to properly process and adapt to revolutionary changes that come with greater force butmuch less frequently. Revolutionary changes often form the basis for the slower evolution of thelaw through constant interpretation and reinterpretation of the various subtleties and nuances thatare revealed over time in between rounds of major change.If Congress and the various administrative and judicial appellate bodies would cooperate,immigration law would only experience incremental changes commensurate with the abilities ofthe average government employees and private practitioners involved. It is evident thatimmigration and nationality law experiences small gradual changes as well as rapid,overwhelming, and dramatic changes. These realities mean that immigration professionals mustbe prepared to meet whatever challenges comes along so reactions to these gradations of changemust be flexible enough to remain in line with whatever the latest change happens to be.It’s Not Just What You Know, It’s How You Use It:For example, the definition of a specific term within the INA is usually simple to learn, butoffers little after this if one cannot apply it selectively and effectively within its appropriatecontext. Some terms have varying definitions as applied in different contexts. It is possible forsomething to be easy to learn through rote memorization, but much more difficult to master itsnuances. A block of information is harder to apply with little beyond the initial accomplishmentof mindless memorization without internalizing the underlying concepts and recognizing theproper context for application of that knowledge (or skill). Individuals who are the product of aneducational system that encouraged them to “think outside the box” fare better at immigrationlaw than individuals who were forced to abandon creativity in favor of rigid rote memorization.That’s just food for thought.A specific example of something seemingly easy to learn is the Immigration and Nationality Act(INA) Title III definition of “child”. It is only seemingly easy because at first glance it is notvery long, but it incorporates by reference the Title I and II definition which is much longer.INA § 101 [8 USC 1101]:(c) As used in subchapter III of this chapter— Page 5 of 9
  6. 6. (1) The term ``child means an unmarried person under twenty-one years of age and includes achild legitimated under the law of the childs residence or domicile, or under the law of thefathers residence or domicile, whether in the United States or elsewhere, and, except asotherwise provided in sections 1431 and 1432 of this title, a child adopted in the United States, ifsuch legitimation or adoption takes place before the child reaches the age of 16 years (except tothe extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1) of thissection), and the child is in the legal custody of the legitimating or adopting parent or parents atthe time of such legitimation or adoption.On the other extreme is the Title I and II definition of “child”, which is more difficult to learn,but offers a wider range of applications of it to master after one has figured it out.INA § 101 [8 USC 1101]:(b) As used in subchapters I and II of this chapter-- (1) The term ``child means an unmarried person under twenty-oneyears of age who is-- (A) a child born in wedlock; (B) a stepchild, whether or not born out of wedlock, provided the child had not reached theage of eighteen years at the time the marriage creating the status of stepchild occurred; (C) a child legitimated under the law of the childs residence or domicile, or under the lawof the fathers residence or domicile, whether in or outside the United States, if such legitimationtakes place before the child reaches the age of eighteen years and the child is in the legal custodyof the legitimating parent or parents at the time of such legitimation; (D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege,or benefit is sought by virtue of the relationship of the child to its natural mother or to its naturalfather if the father has or had a bona fide parent-child relationship with the person; (E)(i) a child adopted while under the age of sixteen years if the child has been in the legalcustody of, and has resided with, the adopting parent or parents for at least two years or if thechild has been battered or subject to extreme cruelty by the adopting parent or by a familymember of the adopting parent residing in the same household: Provided, That no natural parentof any such adopted child shall thereafter, by virtue of such parentage, be accorded any right,privilege, or status under this chapter; or (ii) subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in suchclause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while underthe age of 18 years; or Page 6 of 9
  7. 7. (F)(i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord aclassification as an immediate relative under section 1151(b) of this title, who is an orphanbecause of the death or disappearance of, abandonment or desertion by, or separation or lossfrom, both parents, or for whom the sole or surviving parent is incapable of providing the propercare and has in writing irrevocably released the child for emigration and adoption; who has beenadopted abroad by a United States citizen and spouse jointly, or by an unmarried United Statescitizen at least twenty-five years of age, who personally saw and observed the child prior to orduring the adoption proceedings; or who is coming to the United States for adoption by a UnitedStates citizen and spouse jointly, or by an unmarried United States citizen at least twenty-fiveyears of age, who have or has complied with the preadoption requirements, if any, of the childsproposed residence; Provided, That the Attorney General is satisfied that proper care will befurnished the child if admitted to the United States: Provided further, That no natural parent orprior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accordedany right, privilege, or status under thischapter; or (ii) subject to the same provisos as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (E)(i); (II) has been adopted abroad, or is coming to the United States for adoption, by theadoptive parent (or prospective adoptive parent) or parents of the sibling described in such clauseor subparagraph; and (III) is otherwise described in clause (i), except that the child is under the age of 18 atthe time a petition is filed in his or her behalf to accord a classification as an immediate relativeunder section 1151(b) of this title. (G) a child, under the age of sixteen at the time a petition is filed on the childs behalf toaccord a classification as an immediate relative under section 1151(b) of this title, who has beenadopted in a foreign state that is a party to the Convention on Protection of Children andCooperation in Respect of Intercountry Adoption done at The Hague on May 29, 1993, or who isemigrating from such a foreign state to be adopted in the United States, by a United States citizenand spouse jointly, or by an unmarried United States citizen at least 25 years of age-- (i) if-- (I) the Attorney General is satisfied that proper care will be furnished the child ifadmitted to the United States; (II) the childs natural parents (or parent, in the case of a child who has one sole orsurviving parent because of the death or disappearance of, abandonment or desertion by,the other parent), or other persons or institutions that retain legal custody of the child, have freelygiven their written irrevocable consent to the termination of their legal relationship with thechild, and to the childs emigration and adoption; (III) in the case of a child having two living natural parents, the natural parents areincapable of providing proper care for the child; (IV) the Attorney General is satisfied that the purpose of the adoption is to form a bonafide parent-child relationship, and the parent-child relationship of the child and the naturalparents has been terminated (and in carrying out both obligations under this subclause theAttorney General may consider whether there is a petition pending to confer immigrant status onone or both of such natural parents); and (V) in the case of a child who has not been adopted-- Page 7 of 9
  8. 8. (aa) the competent authority of the foreign state has approved the childs emigrationto the United States for the purpose of adoption by the prospective adoptive parent or parents;and (bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the childs proposed residence; and (ii) except that no natural parent or prior adoptive parent of any such child shallthereafter, by virtue of such parentage, be accorded any right, privilege, or status under thischapter.How does the definition affect an applicant, petitioner, or beneficiary?Beyond the basic underlying statutory definitions, there are benefits that will be affected by howone meets or fits a particular definition or not. Is one seeking nonimmigrant or immigrant visaclassification, issuance of such visa or adjustment of status (as the principal, derivative ordependent), naturalization or recognition of citizenship, or the international adoption of a child?If adoption, is it an orphan or non-orphan adoption? If an orphan, is it a Hague convention ornon-convention orphan adoption? Is one applying for something directly as a principal or as adependent or derivative? Can an older orphan and a younger orphan who are siblings both beadopted? How does that work? Which part of which of the definitions of “child” applies to thecase at hand? Does one have to be a “child” right now or did certain things have to happened inthe past when one was still a “child”? What are the various cut-off ages over the course of time?Does the Child Status Protection Act (CSPA) apply? How?If a half-sibling wants to file an I-130 for his/her half-sister or brother.... Did they both have tohave a bona fide parent-child relationship with the same common parent as children? Is it thesame or different for same mother rather than same father? What if one child was adopted intothe family? How would things work out if one child was adopted out to an aunt or uncle? Arethe blood-siblings now legally cousins? Did each sibling (half/full blood, in wedlock/out ofwedlock, legitimated/illegitimate, step or adoptive) have to be children at the same time as eachother or merely when each was having the qualifying relationship to the common parent? Does itmatter through which parent the sibling claims a relationship to the other sibling? Is it easier toprove that relationship through the mother or the father or is it country-specific, or has theanswer changed over time? And the list goes on....How Does All The Above Discussion Relate to Customer Service Delivery?For the government, if a customer asks a question, the Customer Service Representative orOfficer to whom it is directed had better actually know the correct answer or be willing to readilyadmit that they don’t know. The inquiry does not end there in fact it may only be getting started. Page 8 of 9
  9. 9. In the private sector, the same situation will often arise when a client first seeks representationfrom an attorney or BIA accredited representative or BIA recognized organization.Quite often, the question first asked is not the one that will get the customer or client theinformation they actually seek. This is due to the complex nature of immigration and nationalitylaw. It is such an extensive subject matter that a layperson may be so overwhelmed that theyhave little idea what part of it may have application to their situation. If one does not know ananswer immediately, they may be able to illicit further details from the person seekinginformation in order to determine what information the customer is actually seeking. In thealternative, the knowledge seeker may blurt out information that suggests totally differentpossibilities to the immigration professional that the customer/client never would haveconsidered or asked about directly. In order to figure out what the customer is actually asking,the Customer Service Representative or Officer (which could just as easily be an ImmigrationJudge, or Special Agent, or Immigration Inspector) or private practitioner/accreditedrepresentative will very often have to ask a series of specific probative questions in response to avague question or convoluted problem presented to them. In order to do this, the governmentemployee or private practitioner needs to be in possession of a sufficiently in-depth overallunderstanding of the INA including the latest information.A charge or accusation of having provided Official Misinformation is a bad position for thegovernment to find itself defending against. Even worse than the embarrassment to the individualemployee and the agency, is the injustice to the applicant for an immigration or nationalitybenefit. Remedies such as equitable esstoppel, nunc pro tunc approval, res judicata, backdating,or favorably exercising discretion have certain legal limits that may not be able to right a wrong.It is best to avoid the wrong in the first place.For the private practitioner, including BIA accredited representatives and the BIA recognizedorganizations they are associated with, would suffer from charges and accusations of ineffectiveassistance. Malpractice suits may be the only sense of justice that a client might get when denieda benefit that the government agency or Courts can’t make right through a legally permissibleremedy or won’t make right through an extreme use of discretion. The favorable exercises ofdiscretion as well as the application of remedies have limits. Those limits have to be setsomewhere. One should not expect to be the one that sets a new standard because that happensvery infrequently.A poorly trained, ill-prepared, and under-educated immigration professional does not providegood customer service in either the government or private sectors. It is a situation to be avoidedat all cost. As the USCIS “Avoid Scams” campaign slogan goes... “The Wrong Help Can Hurt”. Submitted July 23, 2011 Page 9 of 9

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