Special Immigrant Visas for Iraqis: Bag with Holes

Section 1244 of the FY 2008 Defense Authorization Act (Kennedy Bill, scroll down to Title XII, Subtitle C: Iraq and Refugee Crisis), signed into law on January 28, 2008, authorized 5,000 special immigrant visas (SIVs) for U.S. Government Iraqi employees and contractors each year for the next five years. In addition, in a unique development for U.S. visa programs, the legislation also authorized refugee resettlement benefits to Iraqis and their families who are granted (SIV) status. This SIV program is intended to reward and protect those men and women who put themselves and their families at great personal risk by assisting the U.S. Government in Iraq and Afghanistan as interpreters and translators.

Iraqis and their families who worked with or on behalf of the U.S. Government for a period of at least 12 months on or after March 20, 2003, are eligible for SIVs if they can document that (1) they provided faithful and valuable service to the U.S. Government and (2) they have experienced or are experiencing an ongoing serious threat as a result of their U.S. Government employment. According to Embassy Baghdad officials, there is no central repository or database that contains the names of the thousands of Iraqis that have been employed on behalf of the U.S. Government since March 2003. Embassy officials said they possess documentation for Iraqis that served with U.S. Government agencies that work at the Embassy, regional embassy offices, and the 25 provincial reconstruction team sites. However, verifying employment for those Iraqis who worked for military units that rotated out or contractors that no longer operate in Iraq will be difficult.

On September 5, Walter Pincus writing for the Washington Post wrote about the possibility of fraud and abuse under the Iraqi Visa Law citing an unreleased OIG report. Today, after some digging I discovered that the cited report dated July 2008 (PDF file) has been posted online. The report which I presumed was publicly released within the last couple of weeks came from the Middle East Regional Office of the Office of the Inspector General of the Department of State.

I have written previously about the Iraqi refugee problems here and have been supportive of the work done by Kirk Johnson and TLP. I still think that it is our moral responsibility to save, if you will, the Iraqis who have put themselves in danger by helping us in Iraq. It is not a question of whether one supports or opposed this war. We don't leave our friends behind.

But the recent OIG report cited some aspects of the SIV program that I find troubling, more troubling especially with the expanded SIVs that would authorize a total of 25,000 SIVs in the next five years. My comments follow the OIG text.

The general or flag officer recommendation letters are central to establishing petition and SIV entitlement and serve as sole USCIS qualifier. The OIG report states that “many of the recommendation letters from the military contained exactly the same language and format, and thus it appears the letters were nonspecific pro forma documents endorsing petition submissions from military subordinates in the general or flag officer’s chain of command.”

– I personally believe that we’re giving these folks a new life in the United States, plus resettlement benefits, the least that our general or flag officers can do is provide specific reasons, not pro-forma language of endorsement. Any State Department officer who has ever written a visa referral, even for those temporary visitor’s visa knew that he/she is held accountable for such referrals, why lower the bar on this one? If the general or flag officer's recommendation is the sole qualifier under this new law, does it also mean that the U.S. military has total responsibility for vetting the applicants they are recommending under this program - including security and background checks?

The OIG team’s file examination indicated that USCIS adjudicators generally did not look beyond the written recommendation to determine the applicant’s official duties and if they qualified under the program.

– Oh la, la! Okay, I know that USCIS is a pretty dysfunctional entity but if it’s not part of their jobs to ensure that the applicants are qualified under the program before they approve it, then heck, whose job is it? If one suicide bomber slips into this crack, I’m sure we can drag State, Defense, Homeland Security and USCIS into a 9/11 kind of commission and see where the buck actually stops, but then it would be just like all other commissions created after the fact.

Consular officers are required to accept USCIS-approved petitions as prima facie evidence of entitlement to SIV status unless they believed that USCIS adjudicators did not have the benefit of facts that surfaced during the interview. The adjudicating officers were not given the authority to question the flag officer or general’s recommendation of the applicant unless there appears to be fraud.

– Why the heck not? The OIG team learned of several instances (and observed one interview) where the applicant proceeded through the entire SIV process, up to the consular officer interview point, before it became clear the person could not speak English and would need the assistance of an Arabic language interpreter to complete the interview. If a person is applying for an SIV based on his/her qualifications as a US translator or interpreter for the military, he/she could not speak a hoot of English, and a flag officer has written a recommendation - wouldn't it make sense for the adjudicating officer to have the authority to question that flag officer's recommendation?

The OIG team’s analysis of the case files revealed the bulk of petitions received extremely expeditious adjudication by DHS and review by the Department. For example, the average number of workdays required to examine Iraqi SIVs were eight days for USCIS review, 40 days at the National Visa Center, and 20 days at consular offices for an overall average time of nine weeks. (By comparison, processing immigrant visa applications for immediate relatives of American citizens – the easiest and quickest visa to process – takes on average four to six months.).

- Whose ass did we light a fire on this one? Eight days for a USCIS review? That's absolutely unheard of! I'm sure naturalization applicants who had to go to court to get their cases moved in the pipeline would have a lot to say about this.

SIV interpreter/translator visa recipients who indicated they plan to leave their families in Iraq or plan to return to their former jobs in Iraq as soon as they establish legal permanent resident status in the United States. The team is aware that many of the Iraqi interpreters and translators who receive SIVs and seek to return to Iraq would provide a valuable service to the U.S. Government. The team attended a short ceremony at Embassy Baghdad in February when the first SIVs were issued in-country and heard Ambassador Crocker encourage the recipient Iraqi visa-holders who had expressed an interest to return to work at the Embassy to do so. Nonetheless, there are a number of issues and equities to be carefully considered, including the payment of resettlement benefits and the targeting of limited visas slots to those most in need of protection and resettlement. (The OIG team also questions whether an applicant under the Section 1244 program can claim to face a serious threat when they are planning to return to Iraq immediately after establishing legal permanent resident status.)

– Yay! Wouldn’t we consider this double dipping? An SIV recipient could technically be in New York on leave from his/her work in Baghdad, receive resettlement benefits, return to Iraq and continue to receive employment salary and benefits from Uncle Sam.

Based upon conversations with their Iraqi staff, Embassy Baghdad and USAID officials said they anticipate the Kennedy Iraqi SIV program will result in the departure of the majority, if not all, their LE staff. These officials also said they expect the new program will serve as a magnet for new LE staff hires; fulfilling a one-year work requirement to qualify for a special immigrant visa. The officials voiced concern over a ‘revolving door’ staffing situation and the deleterious effect it will have on productivity, including the time required for recruiting and training new staff.

– I have written about this conundrum briefly here. But why is the one-year requirement the bar? Is that reflective of the extremely short life span for Iraqis under the current environment in Iraq? Hasn’t the surge succeeded? I have a good reason for nitpicking on the one-year work requirement under this law. Locally employed staff (LES) in the rest of our embassies and consulates abroad are allowed to apply for special immigrant visas only for outstanding performance or for heroic circumstances after working for Uncle Sam for at least 15 years! At least 15 years of loyal and outstanding service is the bar for locally employed staff outside Iraq. And sometimes, those applications even get sent back for additional documentations. Is Congress actually saying that a year in the war zone is equivalent to 15 years of faithful service to the United States elsewhere?

The OIG team also identified the following cases of concern: Former Saddam-era military personnel, including Republican Guard offi cers, a chemical warfare specialist, a former fighter pilot who flew against U.S. military forces, and a commander of the national air defense center. (During the course of our file review, consular officers sought advisory opinions regarding these applications from the Department.)

In the Bureau of Consular Affairs (CA) comments appended to the OIG report, CA emphasized that the consular officer has a responsibility to review, but no authority to re-adjudicate, an approved petition. It added that: "The decisions to approve the former Saddam-era military officials whose cases were cited might have been questionable; however, those questions are properly addressed to the agency charged with making the recommendation and initial background check of the applicant, not to other agencies that give appropriate deference and credit to those processes (DS: somebody explain this to me in simple English, please) . If a consular officer is satisfied the special immigrant classification criteria are met and no visa ineligibilities are found (and there is no visa ineligibility related to Saddam-era military service per se), there would have been no basis for the consular officer to return any of their petitions unless the officer had sufficient evidence" [that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means].

For some reason all these made me think of Secretary Powell's "you break it, you own it" rule. A footnote in the report indicates that the Bureau of Consular Affairs retains approximately $45 per individual filing fee and the remaining $355 is deposited in the U.S. Treasury’s general fund. Since these applicants won't be charged these fees, processing 5,000 SIV cases (with three individuals per case) will cost the Bureau of Consular Affairs approximately $675,000 in lost revenue per year and the U.S. Treasury more than $5 million per year. In addition, it also requires additional staff and office space to handle the additional workload in Iraq and several other consular sections in the region. But what the heck - $25 million in five years is just change when you look at this whole $3 trillion escapade. And still counting - ka-ching!!