Livestream: "USCIS Insider's Perspective on Green Card Eligibility"

Transcript:

Rosanna Berardi: We’ve got this great live stream. There’s so much going on in the immigration world. Again, Rosanna Berardi, managing partner of Berardi Immigration Law. We’re a business immigration firm based in Buffalo, New York. And we are looking at this May 22, adjustment of status memo in great detail. But today, rather than just hearing my voice, we have a very special guest. We have a former, recently former USCIS Supervisor Douglas S. Pierce with us today, live from Detroit, Michigan. Hello, Doug.

Douglas S. Pierce: Hey, hello, everybody. Thanks for having me, Rosanna. It’s really great to be here.

Rosanna Berardi: Thank you. Well, we’re super excited to have you. It was like kismet when I saw you on LinkedIn and we had a call on Monday and you and I have very similar backgrounds with respect to the immigration service and inspection. So why don’t you tell our viewers a little bit about your career with Legacy INS, those that are not old enough, that’s what CBP used to be called. And yeah, tell us a little bit about how you got started in this game.

Douglas S. Pierce: Sure. So I attended college at Michigan State University. I was graduating in nineteen ninety two after having served over in the desert Gulf War for a brief interlude. I graduated with a degree in cultural anthropology and didn’t really have any prospects lined up. So I took a test for federal law enforcement. And it one of the options that was given to me was to be an immigration inspector in Miami, Florida, at the Miami International Airport. And so I said, sure, why not? So proposed to my fiance. We moved down there together in November of ninety two. And I started my three year stint as an immigration inspector at a twenty four seven major metropolitan airport that basically served as a major hub for all flights coming in from the Caribbean, from Central and South America, some from Africa and even from Europe as well. So it was an amazing experience interviewing or, you know, basically inspecting people from all over the world. I think in that three year stint, I think I met just people from just about every country in the world, except for maybe North Korea.

Rosanna Berardi: Yeah, that’s fascinating. And so you were on the front line doing inspections as people were arriving into the U.S. And so after you did that for three years, tell me about how you wound up with the agency USCIS.

Douglas S. Pierce: Sure. So back at that time INS didn’t really have an ability to transfer within the service. If you wanted a different position you had to kind of almost apply from the outside almost. And so I, we my wife and I just had our first child and we were looking to get back closer to family in Detroit. So I applied for a position for the district adjudication officer, just like I applied for the immigration inspector. I took the test, did really well. My veterans preference helped. And I got offered a position as a district adjudications officer in Detroit. And so that was in October of ninety five. I joined the Detroit district at that point. And the very first day I walked in the office, they handed me an approval stamp and a stack of K-one I-forty-fives and said, here, figure it out. And I was adjudicating cases within the first day or two of arriving in Detroit and never having been an adjudicator before.

Rosanna Berardi: Wow. Trial by fire.

Douglas S. Pierce: So adjudications, you’re looking at adjustment applications. You’re looking at I one thirties. You’re really assessing whether, you know, when we put pen to paper here at the firm, we’re submitting all this evidence. You’re looking at that in connection with the immigration law and making sure that all the dots are being connected. Correct, that the story that is being presented to us makes sense, that all the eligibility factors are being met, that there aren’t any issues of admissibility in N-Forty-Fives or good moral character in N-Four-Hundreds, and reviewing the background checks and making sure that we have the information we need to do a good solid adjudication of the case.

Rosanna Berardi: That’s great. So you were there for thirty years, correct?

Douglas S. Pierce: Yeah, I retired in October of last year after a thirty three year, thirty three plus years of experience as an inspector and as an adjudicator and supervisor.

Rosanna Berardi: Wow, that’s amazing. So tell us about the supervisory part of your role with USCIS. Are you what’s your interaction with the adjudicators? Are you looking at their decisions? And tell me what your role was when you’re the supervisor?

Douglas S. Pierce: Sure. So in Detroit, especially say over the last five to ten years of my career as a supervisor, a supervisor supervises a team of adjudicators. It could be anywhere from six to eight adjudicators. And what you’re doing is you’re having meetings with them, discussing policy changes. sitting in with interviews to make sure that they’re following policy and procedures and making the right decisions um there’s also various policies that are set in place as certain cases need supervisory review uh like if you want to deny a case for a good moral character uh then four hundred uh we’re going to take a look at that make sure that you’re applying the law the facts and and making the right decision. And if you want to approve a case that might have some good moral character issues, we’re going to take a review of that so they send it for supervisory concurrence.

Rosanna Berardi: Got it.

Douglas S. Pierce: We also, you know, the supervisors were also tasked with providing training for their team members and for other teams as well. Like I was known as a naturalization expert so that when even other teams, other supervisors maybe were more experts in . And they would send some of their team members to me with questions on, you know, obscure aspects of N-four hundreds or if somebody could potentially have been a derivative citizen and they wanted somebody to take a look at it to make sure. That was one of my areas of expertise. So, and then we trained new officers as they were coming in. Now their seniors also did major roles in the training and the senior officers are the same grade as supervisors, but they don’t have to deal with all the, in the little personnel aspects of being a supervisor. They’re the experts in law and policy and that sort of stuff. And supervisors are pretty much experts in that stuff too. But the seniors are the ones that are really digging in deep into those decisions that might become precedent setting, that sort of stuff.

Rosanna Berardi: Got it. Okay. So tell me… So in the last, let’s say, decade, we have seen a lot of legislating by executive order and policy memo, right?

Douglas S. Pierce: Absolutely. You and I are both old enough to know that the Immigration and Nationality Act has not been meaningfully modified by Congress since was the last really large change. I also consider the Child Citizenship Act of 2001 to be a fairly significant change because it provided for the automatic derivation of citizens and of the adoptees, the orphan adoptees becoming. But that affected a relatively small portion of the immigrant community, whereas. Whereas Zyra Iroh was a huge change. But yeah, Congress hasn’t been able to put together majorities strong enough to either overcome or work with the president of either party. Right. To come up with any significant changes to the Immigration Act as it’s written. And it’s really a shame.

Rosanna Berardi: Pretty much the only thing we have gotten in the last ten years have been these little showcase, you know, big headline stuff like the, what is it?

Douglas S. Pierce: The law that they passed that was based on the young woman who was slain in, I think, Georgia.

Rosanna Berardi: Yeah, the Lakyn Riley Act.

Douglas S. Pierce: The Lakyn Riley Act, yes. So that was, you know, only those kinds of showy pieces that make headlines and say, look, we’re being super tough on stuff is going to make it through Congress at this kind of time until they can get some sort of majority that can either override a veto or work with the president.

Rosanna Berardi: Yeah. I hope, Doug, in my lifetime and yours, that we see something big from Congress, but I’m not really hopeful, unfortunately.

Douglas S. Pierce: Yeah, and I think it’s become where each presidential administration sees their opportunity of issuing executive orders to shape immigration policy through these issuing of orders and slight adjustments or reinterpretations of parts of the act. And I think that’s a shame because politics is compromise, right? And compromise, everybody dislikes a little bit of it. Hopefully everybody likes a little bit of it. And you come up with something that works for more people than not. And with executive orders, you have people basically satisfying one end of a political spectrum.

Rosanna Berardi: Yeah, I feel like the word compromise is not in the vocabulary of Congress or legislation, and that’s why we’re in the position we’re in. So I’m sure you’ve been privy to this. We are all the time, like these memos drop or these executive orders. You’re just minding your business on a Friday afternoon, waiting for the weekend. Looking for that holiday weekend, yeah. Four o’clock before a holiday weekend, you get a bombshell. So your office is getting them, right? Well, your former office is getting them. Former office, right. You know, and then seems like the media gets them before the lawyers do. And then we’re like all looking at these things. So when a big memo comes out, like on May 22nd, right before Memorial Day weekend, like what’s USCIS doing? Like what’s there? Are they are they like, oh, OK, we have this memo. So now we have to train our team or like tell me in the past what that looked like.

Douglas S. Pierce: Sure. So in the past, we would usually have some sort of, you know, the agency, the offices would get some sort of headline coming up or note say, hey, we’re going to institute this memo. Here’s a look at it in advance. It’ll be effective on this date. We’re going to implement it on this date, and we’re going to provide some train-the-trainer training if it’s large shifts in policy or how we’re doing things. And I think that’s changed a little bit, especially with this past memo. There wasn’t any warning given to the field. They got it. I think on the 21st um they got a headline or a heads up that it was coming on the twenty first but they also like some of my colleagues former colleagues in the Detroit office have told me subsequently that they haven’t really done anything training wise or discussed that as it was stated that they’re not really doing adjustment of status cases right now anyway so that uh. There has been a really big downshift in the production metrics that the offices were asked to or mandated to complete. And with so many cases, different kinds of cases or countries on hold, they have basically just said adjustment of status. We’re not really doing those right now. And they’re focusing on naturalization cases to meet their lower targets of completions. And so I have heard other offices, however, are interviewing.

Rosanna Berardi: Yeah, so viewers, just listen to that for a minute. Foreign nationals are paying very expensive filing fees. They’re also paying very expensive lawyer fees, and their cases aren’t being adjudicated. And we’re only talking about one office here, but one would conclude that that’s occurring probably in multiple offices throughout the U.S. So adjustment has been really put on hold. And in my opinion, this administration was elected to fix immigration, right? Like they came out guns a blazing, we’re going to fix immigration, largest mass deportation ever. Think back to January, February, what the ice raids in Minneapolis and all the police presence. Chicago. And, you know, then some polling occurred and then poof, that just went away. You know why? Because America didn’t like that. Right. It was too much. So now I have felt as a practitioner, a very tangible shift towards legal immigration. Now the administration’s like, well. Well, now there’s a lot of loopholes in the law and we’re gonna close them for legal immigrants, the ones that pay the fees, respect the law, wait their turn. We’re gonna close them with a memo. So the memo that dropped on May, to me was a very, I feel like the administration’s really going after the sound bite. They are obsessed with fixing immigration, but in my humble opinion, don’t fix something that Congress has created because you really don’t have the power to do that.

Douglas S. Pierce: That’s correct yeah. I think that I think the memo and I wrote about this on my LinkedIn profile I think the memo was issued for three separate and distinct audiences all right it was yeah it was. Dropped when it was dropped on the Friday right before a holiday weekend so that we get the maximum exposure to news outlets that were wanting to satisfy a certain narrative about closing loopholes and fixing problems within immigration. And there is a dominant narrative out there among the public that adjustment, those who even know anything a little bit about the immigration process see adjustment of status as one of those loopholes that people are skipping the line at the council and embassies and not waiting their turn like their ancestors did.

Rosanna Berardi: Right.

Douglas S. Pierce: And they’re coming here by any means necessary, by hook or by crook, getting to the United States. And once they’re here, they can file for the adjustment of status and they don’t have to wait like those other people do in their home countries. And so I think this memo, the first audience that it was directed towards was that kind of vaguely aware of immigration processes and that it’s broken. And was to say, hey, we’re doing something about this. We’re going to close these loopholes and make these people go out overseas to take care of their, to do it the right way, quote marks for that. The second audience that that memo was intended for was the immigrants and the immigration practitioners community. And it was dropped on that Friday and announced in the way that it was and put into certain sympathetic news media to begin with as a shot across the bow to say, hey, things have been easy up till now, we’re changing that, and you’re gonna have to face some possibility of explaining why you deserve this extraordinary grace and benefit of us allowing you to adjust for status when in reality it’s been something that’s in the law for seventy years now. And it’s not an extraordinary benefit, but it’s part of the process. And people who are filing for adjustment of status are not skipping the line to gain their legal status. They either had to have legal status to begin with and maintain it, or they have to pay for waivers and fees and jump through a lot of hurdles to show themselves to be eligible. And that’s before this memo dropped. The third audience that it was for, right now, because I think, before I speak to the third audience, the first two audiences, the administration’s walked back a little bit on this memo and basically have said, we’re not killing the adjustment of status process. We’re not making any changes. This is just something that everybody has the right, or that every officer has the requirement to do is to look at the discretionary thing. And so they’re walking it back a bit so that it doesn’t seem like it’s such a big change. But the third audience, they haven’t walked it back to the third audience. That third audience is the Adjudication Corps. And this third audience has basically heard the message that says, you’ve been doing this on a routine basis as part of your regular workflow we want you to start making it a little bit more challenging a little bit more making sure that cases that have any kind of irregularities or have any blips in their time in the US where they either had maybe a minor arrest or maybe had some unlawful time where they were out of status for a period of time, we’re going to want you to look at and see if you can’t do a discretionary decision to send them back over to their country and follow that process like they should be in the first place. And that’s kind of the message that the Adjudications Corps is hearing. And that needs to be also seen in the context of it’s the adjudicators, I mean, part of the administration when it came in was kind of against the whole administrative state, right? The whole doge cuts, the whole cuts, massive cuts to various agencies, eliminating some agencies outright, taking away, offering out these early retirements and deferred resignation programs, which I was a beneficiary of um to uh to leave the service to streamline it to get fewer people in but also take out some of those more experienced people who had a lot of time and service a lot of institutional knowledge um and that was uh. So all of that needs to be seen in the context of they want the government employees to be a little bit fearful. And if adjudicators are hearing a message saying you need to be stricter on this quality, they’re gonna implement that. And supervisors are going to be told, you need to look at a little more carefully what you’re doing on these reviews. And then managers are going to be told, well, you need to make sure your percentages get more in line with know how many we want you to deny versus how many versus are approved um and you know so offices are judged on how their statistics look in various ways on in an aggregate form and slight tweaks to those statistics uh could mean shifts in how officers approach cases or which cases get addressed.

Rosanna Berardi: OK, so I have a bunch of questions. That was excellent. And I love that you broke it down with the three groups. So it’s super interesting to me because the government did walk this back publicly, sort of. Like the New York Times came out on this past Friday and said, OK, well, a USCIS spokesperson said, “The memo will not prevent any alien from obtaining a green card who legitimately and properly qualify.” That’s what they said. But USCIS has not formally issued a memo, a redaction, anything. This was just a statement. And to me, that proves your point of the third group of the adjudicators, not, you know, they still got the memo, right? They’ve got the memo from May, that says, okay, we could have people statutorily eligible, but we want you to ask them questions like, why did you adjust instead of counselor process? Did you maintain your nonimmigrant status the whole time? Do you have ties in the US or in your home country? So we’re hearing reports from AILA attorneys that clients are definitely being asked those questions like, well, why didn’t you go home? And some clients are like, well, because I’m in an H-B and I have kids in school and I work in a research lab and the law allows me to adjust. So I didn’t go home. But we’re hearing that, which to me, again, is proof positive that the agency is still going forward on this May twenty second memo, despite being walked back in the media.

Douglas S. Pierce: Right absolutely i think the the walking back was just to cool down the hullabaloo especially among say the immigration practitioners yeah i will say that i do think that you know they’re going to narrow their focus of who this memo is going to be really going after really you know of this discretionary aspect. I think those that are on the dual intent employment based visas, I think they’re going to be fine. They probably don’t even need to bother worrying about this. Those that are not on dual intent but are employment based will usually have fairly easy to establish credentials of why they need to stay in the United States. They got a job, they’re doing a task for employers. And they’re usually for these larger employers that are going to be fine drafting something saying, yeah, we need this guy to remain in the United States. And they’re most likely to have maintained their status properly anyway. The big impact is going to be on family-based cases to be honest and it’s going to be on those family-based cases where especially where they may have arrived on as a b-one b-two got married within a couple of weeks or or what what’s seen as a short period of time and when clear okay so that would kind of indicate maybe an intention to skip over that process why didn’t you come in why didn’t you guys get married previously and then file for the immigrant visa overseas. And then anyone who’s got these little you know hiccups in their status, in their criminal history, in their background checks, that things that in the past could be, you know, an I-601 waiver or 601-A or stuff like that and overcome that way. Now, instead of maybe offering that waiver, the officers are going to say, well, you need to build a case why I’m going to adjudicate this favorably here rather than say deny it and make you go back overseas to deal with it.

Rosanna Berardi: Yeah, it’s interesting because way back when, when I worked for the Immigration Service, I remember being trained that, okay, well, like, we don’t really like when people come in as visitors and then they marry. But if they marry a U.S. citizen, like, look the other way on the intent issue and Section 245-C allows for adjustment and that still allows for adjustment. But it seems like the government’s going to flex their discretionary muscle a lot harder and stronger on those cases where the intent on entry might be murky, you know, especially like people come in to go to Las Vegas and then they fall in love and they get married and, you know, there’s the whole I-145. I think those cases will be looked at microscopically. Do you agree?

Douglas S. Pierce: Absolutely. I think those the ones are probably some of the ones that are going to be most looked at, especially since it was originally designed as the visa waiver pilot program and it was actually prohibited that they couldn’t adjust that right right they used up on that but i think that’s something that they’re going to look at changing also because those the esta countries are the ones where people can travel most easily to and from the united states.

Rosanna Berardi: Right and they can most easily set things up for them to come here on a final trip and say okay i’m going to stick around and and we’re going to do this marriage thing or whatever. Another group will be parents of u.s citizens uh surprisingly you know those who come on as the parents of U.S. citizens that they’re watching grandkids for a six-month thing. And then they say, well, but why send them back home? Let’s just file for adjustment of status. And that’s the thing where they’re going to look at, well, wait a minute. If you knew you were going to come here and stay, why didn’t you just apply for the no-wait immigrant visa at the consulate, right?

Douglas S. Pierce: Yeah. Yeah. You know, if everyone could apply at the consulate in a week or ten days, a lot of people would. But consular processing is a big, fat mess worldwide. And they’re cutting back embassies and councils that process immigrant visas. And they’re cutting back staff at the State Department. Right.

Rosanna Berardi: So listeners, think about this. So we’ve got the government offering really experienced people like Doug a nice package to get out, right? We don’t want Doug’s third-year institutional knowledge. We’ve got DOS. We have embassies being closed. This is narrowing the funnel of immigration to the United States without Congress changing the law, right? These are tactics to say, okay, well, Congress isn’t going to change the law. We’ve been elected to get this done. And people keep saying to me, well, seventy million people want this. And I’m like, well, I don’t think this is what seventy plus million people wanted with respect to legal immigration. Do they want criminals out of the country? Yes. Do they want consistent violators, yes. Nobody wants any type of criminal in their community, regardless of if they’re born in the U.S. or somewhere else. But this issue of narrowing the funnel is super strategic and very passive-aggressive, right? Like, we’re not talking on ABC News or New York Times about all the officers that got retirement packages and all the DOS employees that are no longer staffed, right? Those aren’t the headline stories.

Douglas S. Pierce: No, they certainly aren’t. And that’s the thing is I was one of maybe two people who had worked for the INS when I retired. There was one other officer that I know of that was at my office who had served in the INS rather than CBP or USCIS or such. So yeah, that was the kind of institutional knowledge I had. I mean, I had memories of dealing with naturalization petitions. They were done by the time I started, but there were still a few that were in the system. And so whenever anybody was trying to figure out an old case where somebody might have naturalized on a petition, they would bring these cases to me to kind of sort out. They don’t have that anymore. And so if you’re a newer officer and you talked a bit about these numbers, I mean, it’s in your best interest from a career perspective to do what you’re told and meet the numbers.

Rosanna Berardi: Can you tell us, I know you can’t tell us a ton about the numbers, but how do they work in terms of, I know you said the district offices are rated and reviewed based on statistics. Give us a little bit government insight on that.

Douglas S. Pierce: Yeah, so up until 2025, there was a metric called efficiency units that was basically looking at how long it took to complete the average application of pipe, how much time it took to, say, complete an N four hundred or forty five or nine one thirty. And it measured it in the amount of hours by officer essentially. And so like like an N four hundred was usually a little less or a little bit more than one hour when you totaled up all the adjudication time on it. Yeah. Adjustment of status would be one and a half hours. And so then each officer has a certain number of hours you work in a month, and you were graded on how efficiently you were completing cases based on the EUs of your completions. And so there was always a drive to try and get higher numbers, to get more. For as long as my career went, there were very brief periods where production didn’t matter for very long. And that was during the time period when we were doing NSEERS, when they were doing the registration of aliens after September the eleventh. And they no longer cared about how many cases we were completing at that point in time, just registering all the people that were coming into the office. Once that program was largely scaled down or most of the people had been registered, we went back to, and now we got to get this production back up. Well, in two thousand twenty five at the towards the end of it, officers and offices were told stop producing at this high level. And now we’re going to cap you at a lower level. And we don’t want you to get more completions than than this much lower number. And when you looked at the number on average for an officer, it would usually be about a quarter to a half of what they would do before. And with the rest of their time, they were expected to train, to look at old cases and resolve these old sticky denials that stick around and take way too long, that when you’re under pressure to get completions, you just kind of set that aside because it’s going to take me five hours to do this denial, but I need to get my numbers up, so I’m going to do a bunch of these easier cases. Well, now, don’t do the easy cases. Get that five-hour thing knocked out.

Rosanna Berardi: Yeah. Well, and there is another point that supports my argument that we’re shutting down, closing, narrowing the funnel of immigration because we have an agency for years and years and years that was focused on efficiency that now has thrown efficiency out the window and said, quit working so hard, quit approving all these cases, slow down. And oh, by the way, those old cases, go take a look at those.

Douglas S. Pierce: Yes, and they’re also taking a look at cases that were approved in the prior administration to look for flaws in those cases, for rescissions, for revocations, for denaturalizations.

Rosanna Berardi: Wow, what a bombshell. And what a shame that people are still paying really expensive government filing fees for their cases just to sit there. And so as a takeaway for our viewers and just in general, like the government issues these processing times and I wouldn’t really put a lot of money on those processing times at this point, right? Where they’re saying, oh, four to six weeks, like probably not. And we’ve seen it with our clients and our client base as well. The only thing that processing times probably matter are the expedited or the heavily financed, where they’re paying those exorbitant fees for those business visas, for the gold cards. Yeah, and even the premium processing where we’re paying an extra twenty eight hundred bucks for fast processing, we’re still seeing USCIS miss their mark on the deadline dates. And that’s a lot of money for a foreign national to be paying. But nonetheless, I pride myself on twenty minutes. But Doug, I gave you thirty three because this was fantastic, so insightful. We’ve learned so many things from you. I would love to have you back. This is a really hard time to be an immigration lawyer and a foreign national in the US. I don’t think this is going to stop, unfortunately, anytime soon. So I can’t thank you enough for joining us today and sharing your wisdom and your knowledge and your expertise. And we look forward to having you back very soon.

Douglas S. Pierce: You’re welcome. I appreciate the opportunity. I am doing some work as an independent consultant now, helping immigration practitioners with figuring out the insider process of what’s going on at USCIS and helping with strategize or help figure out approaches to different kinds of cases and situations. So you can find me on LinkedIn. I love to connect and shoot me a message if you got anything and I’d be happy to come back anytime you’d like me to.

Rosanna Berardi: Great. Yes. And you guys follow him on LinkedIn because his content’s really good, really interesting. You definitely offer a fresh perspective. You know, us lawyers tend to complain a lot because it’s hard. But after I read your post, I’m like, okay, well, all right, now I get why this is happening. So again, Douglas Pierce, thank you, former USCIS officer. Be sure to follow him on LinkedIn. And we hope to have you back again soon. But thanks for your time today.

Douglas S. Pierce: Thank you, Rosanna. Take care.