[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
WASTED VISAS, GROWING BACKLOGS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
APRIL 30, 2008
__________
Serial No. 110-104
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
LINDA T. SANCHEZ, California LOUIE GOHMERT, Texas
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
ANTHONY D. WEINER, New York
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
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APRIL 30, 2008
Page
OPENING STATEMENTS
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 2
WITNESSES
Mr. Michael Aytes, Acting Deputy Director, United States
Citizenship and Immigration Services; accompanied by Donald
Neufeld, Acting Associate Director, Domestic Operations, United
States Citizenship and Immigration Services
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. Stephen A. Edson, Deputy Assistant Secretary of State for
Visa Service, United States Department of State; accompanied by
Charles Oppenheim, Chief, Visa Control and Reporting Division,
United States Department of State
Oral Testimony................................................. 12
Prepared Statement............................................. 14
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The bill, H.R. 5882, ``To recapture employment based immigrant
visas lost to bureaucratic delays and to prevent losses of
family- and employment-based immigrant visas in the future''... 33
APPENDIX
Material Submitted for the Hearing Record........................ 55
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Document of the U.S. Department of Homeland Security entitled:
Citizenship and Immigration Services Ombudsman, Annual Report 2007.
This document is available at the Subcommittee and can also be
accessed at:
http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_Report_2007.pdf
WASTED VISAS, GROWING BACKLOGS
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WEDNESDAY, APRIL 30, 2008
House of Representatives,
Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Lofgren, Gutierrez, King,
Gallegly, Lungren and Gohmert.
Staff Present: Ur Mendoza Jaddou, Majority Chief Counsel;
Tracy Hong, Majority Counsel; Andres Jimenez, Professional
Staff Member; and George Fishman, Minority Counsel.
Ms. Lofgren. The hearing of the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law will come to order. First, I'd like to offer
my apologies for my tardiness. I had another obligation with
the Speaker that went longer than expected. I'd like to welcome
everyone to this hearing to examine the consistent failure of
our immigration agencies to issue all the family and
employment-based immigrant visas that are authorized already
under a law each year, despite the ongoing demand for such
visas. I think it is a little bit ironic that in a hearing to
examine why agencies cannot issue visas on time, we did not
timely receive the testimony from the agencies before us today.
We only received the Department of State testimony at a little
after 5 last night, the USCIS at a little after 6 last night
with the revised testimony at 9 this morning. And I would just
like to ask--the Rules of the Committee require the submission
of testimony substantially prior to the day before. I can
recall a time when Mr. Sensenbrenner refused to allow the then
Commissioner of Immigration to even testify because his
testimony was late. I'm not going to do that today, but in the
future I expect the testimony to be delivered in accordance
with the rules.
There are a limited number of visas available each year to
immigrate to the United States, a floor of 226,000 preference
visas per year for family-based immigrants and 140,000 per year
for employment-based immigrants. Each year the backlog of
people waiting to immigrate legally to the United States grows
larger. Approximately 4 million family-based immigrants are
believed to be caught in the legal immigration backlog today
while another 400 to 500,000 are believed to be caught in the
employment-based backlog. Despite these growing backlogs, the
USCIS and Department of State regularly fail to issue the
legally authorized number of immigrant visas each year. They've
only met or exceeded the floor of a family-preference visa in 5
out of 16 years and only 7 out of the 16 years for employment-
based visas since '92.
Most recently, the Department of Homeland Security Office
of Immigration Statistics observed in its annual flow report
for U.S. legal permanent residents that legal immigration
decreased by 17 percent in 2007, quote, due primarily to
application processing issues at USCIS, unquote.
To date there has been little public examination of the
reasons for the ongoing failure to issue the legally authorized
number of immigrant visas each year when there is a clear
demand by qualified applicants for these visas. The only recent
examination of this problem is by the USCIS ombudsman in its
2007 annual report, which found that immigrant visas have gone
unused due to gaps in the accounting of cases by USCIS, USCIS
not processing enough pending applications in a timely manner
and, finally, the imprecise art, if it can be called that, of
predicting work flows and demand surges at the three Federal
agencies who each play a role in adjudicating applications, the
Department of State, USCIS and the Department of Labor.
My colleague, the former Chairman of the Judiciary
Committee, Congressman Jim Sensenbrenner, and I have developed
a proposed legislative fix to not only recapture these unused
visas but also to reform the process that forces us to lose the
visas for future use.
I look forward to the testimony today to help us better
understand the problems that face the agencies charged with
issuing visas so that we may not only address the problems with
an appropriate administrative solution, but also determine
whether our proposed legislative fix is the right legislative
tool to prevent the loss of visas in the future.
I would now recognize our distinguished Ranking Member,
Steve King, for his opening statement.
Mr. King. Thank you, Madam Chair. And although the topic of
this hearing is wasted visas, I have to state that the number
of legal immigrants being admitted to the United States in
recent years tells a different story. Legal immigration is
booming. More than a million green cards per year are being
issued year in and year out. This level far exceeds what was
anticipated when the 226,000 number for family-based preference
green cards and the 140,000 number for employment-based
preference green cards was set by Congress, mostly because of a
dramatic increase in the immediate relatives who are able to
immigrate without numerical limits.
The 226,000 and the 140,000 numbers for family and
employment-preference green cards, respectively, was considered
to be a reasonable amount for our country to absorb when they
were calculated nearly 2 decades ago. But in 1990, Congress did
not contemplate that we'd also have 12 to 20 million illegal
immigrants straining our health care system, our law
enforcement, our infrastructure, our schools and our cultural
identity. We should not be seeking to accomplish a backdoor
increase in immigration levels by adding green card numbers
through, quote, recapturing, closed quote, simply because the
maximum number of green cards allowed was not issued in some
past years.
Most Americans favor a decrease in legal immigration, not
an increase, because of the pressures I have identified. And I
ask those who are the proponents of this at the proper point in
this process, including the Chair and all of the Committee
Members, to answer into the record the questions, will you
support a hard overall cap on legal immigration, a real hard
number for overall and, if so, what number would you agree to
and what is your vision of America in the years 2050, 2075,
2100? And whether you know it or not, you're shaping that
America irrevocably with the policy that is coming through this
Congress today.
From 1992 through 2007, 14,476,668 green cards have been
issued. During that same 16-year period, the number of green
cards issued for the family in the employment preference
categories was only somewhere between--I say somewhere
between--224,000 and 507,000 green cards, that much short of
the statutorily set maximum depending on the methodology used,
a number that pales in comparison to the overall level of legal
immigration. So these numbers work out to be this, that of
these available green cards we are utilizing somewhere between
96\1/2\ percent and 98\1/2\ percent of the overall cards. I
think that is running it pretty close to the line, and I
wouldn't expect it would be 100 percent. You could not be so
precise in your work.
If any recapturing plan is considered, it should include
offsetting measures that would keep the total levels of
numerically limited green card categories no higher than the
current level, an increase in percentage of green cards that
are awarded based on what the recipient offers our country,
meaning merit based. Of much greater concern to me is the
existence of an extremely large backlog in the applications for
green cards. The net backlog for family-based green cards now
stands at 88,168 and the net backlog for employment-based green
cards is 99,105. Many applicants will wait years before their
applications are adjudicated. In the meantime--this is what
really concerns me--green card applicants are being issued
employment-authorized documents, EADs, which grant them almost
all the privileges that are accorded to lawful permanent
residents. They are given a right to work and the right to
travel to and from the United States. They can also get Federal
and State identification which allows them to procure credit,
purchase property, and enjoy other privileges and access
accorded to those who have legal status.
Tens of thousands of these applicants will ultimately be
found ineligible for a green card. Some are aware of their
ineligibility, but they apply anyway. They are counting on the
long backlog to enjoy the years of legitimized presence in the
United States that they've been accorded by the issuance of the
EAD, a document that was, quote, earned simply by filing a
green card application that has no merit.
This situation compromises our national security. Progress
has been made in recent years to reduce the backlog of green
card applications, to reduce processing times and to issue the
number of green cards authorized by the statute. However, those
gains appear to have been defeated by the surge of applications
filed in fiscal year 2007, especially for the nearly 2.5
million applications that were filed in July and August alone,
the surge as I mentioned earlier.
The flood of green card applications last summer resulted
from a perfect storm. An apparent disconnect between the USCIS
and the State Department prompted an announcement that
employment-based green cards were suddenly available to
thousands who had expected to be waiting for years. Many
applicants raced to beat the July 1st fee increases, thousands
more who had hoped to benefit from a general amnesty as part of
the comprehensive amnesty proposal realized after its defeat in
the Senate that they needed to find another way if they are to
legitimize their legal status.
I point out that not only do we not know how many illegals
are coming into America each year, it is imprecise as to how we
fit these categories, how we fill them and how many have
actually been accumulated over the last 16, thus the range of a
quarter million to a half a million. We are, however, utilizing
the vast majority of visas under current law.
I look forward to the testimony, and I appreciate this
situation being addressed in this hearing, Madam Chair, and I
yield back.
Ms. Lofgren. Thank you. The gentleman yields back. In the
interest of proceeding to our witnesses and mindful of the
schedule, other Members are asked to submit their written
statements for the record within 5 legislative days. And
without objection, all opening statements will be placed into
the record. And without objection, the Chair is authorized to
declare a recess of the hearing at any time.
Today we will hear from our witnesses from USCIS and the
Department of State to help us consider the important issues
before us.
First, it is my pleasure to introduce Michael Aytes. In
2006, Mr. Aytes was appointed the Associate Director for
Domestic Operations for USCIS. Since April of 2008, he has been
serving as Acting Deputy Director of USCIS. He began his career
in the 1970's as a Federal employee where he served as an
immigration inspector for the INS.
Next, I would like to introduce Donald Neufeld. In 2007,
Mr. Neufeld became the Deputy Associate Director for the Office
of Domestic Operations at USCIS. He is currently serving as the
Acting Associate Director for our Domestic Operations. He began
his career with the Immigration and Naturalization Service in
1983.
I'm also pleased to welcome Stephen A. ``Tony'' Edson. Mr.
Edson joined the United States Foreign Service in 1981. He is
currently serving as Deputy Assistant Secretary of State for
Visa Services in the U.S. State Department's Bureau of Consular
Affairs. Prior to that he served as Managing Director of Visa
Services and Senior Advisor FOR Strategic Problems for the Visa
Services Directorate from 2001 to 2005. He graduated from the
University of Kansas with a Bachelor's in East Asian language
and culture in 1980, and he holds a Master's in Management from
the Sasin Graduate Institute of Business Administration at
Chula--I can't pronounce--Chulalongkorn University in Bangkok.
I'm sure he could pronounce it better than I, and a Master's in
Science Degree from the National Security Strategy from the
National War College in Fort McNair, Washington, D.C.
And finally, we welcome Charles Oppenheim. Mr. Oppenheim
joined the Department of State in 1978 and has worked as a
consular officer in the Bureau of Consular Affairs since 1979.
In 1998, he was appointed to the position of Chief of the
Immigrant Visa Control and Reporting Division in the Office of
Field Support and Liaison. He is the State Department's expert
in visa database management and statistical reporting on visa-
related information. He is a native of Virginia and a graduate
of the University of Richmond.
Now, your written statements will be made part of the
record in their entirety, and we would ask that you summarize
your testimony in about 5 minutes. When there is a minute left,
the yellow light will go on to give you a little warning of
that. It is my understanding Mr. Aytes will testify on behalf
of USCIS and Mr. Edson will testify on behalf of the State
Department, but that all four of the witnesses will be
available to answer Members' questions. And I see that the
witnesses are nodding. So, Mr. Aytes, if you could begin, that
would be terrific.
TESTIMONY OF MICHAEL AYTES, ACTING DEPUTY DIRECTOR, UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES; ACCOMPANIED BY
DONALD NEUFELD, ACTING ASSOCIATE DIRECTOR, DOMESTIC OPERATIONS,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
Mr. Aytes. Thank you, Chairwoman Lofgren.
Ms. Lofgren. If you could turn the microphone on.
Mr. Aytes. I thought it was on. Excuse me.
Ms. Lofgren. Much better. Thank you.
Mr. Aytes. I apologize.
Thank you for the opportunity to discuss the role of U.S.
citizenship and immigration services in processing visas and
our ongoing cooperative efforts with the Department of State.
The Department of State actually administers the visa
allocation program. Our role focuses on processing petitions
for preference classification, the front end of the process,
and applications by persons already in the United States to
become permanent residents, referred to as adjustment of
status.
In recent years, as you have alluded to, more than 1
million people have annually become permanent residents in the
United States, either by being issued an immigrant visa
overseas by the State Department or granted adjustment of
status by USCIS or the Executive Office for Immigration Review.
State and USCIS must work closely in this respect because both
organizations draw from the same pool of limited numbers. Close
and careful coordination ensures that annual limitations are
not exceeded and also helps us jointly strive to use all
available visa numbers to meet demand.
Last year, in fiscal year 2007, more than 1,052,000 people
became permanent residents. Fifty-nine percent were already in
the United States on adjusted status.
In concert with State, USCIS has made significant changes
in recent years to maximize use of the limited numbers of visas
available annually. This includes using the recapture
provisions that already exist by law. Changes we have made
include increased staffing, enhanced analytic capacity, more
detailed and strategic management of our production in close
partnership with State to share greater information. This
enhanced information exchange with State in particular helps us
manage and they manage the visa allocation process and allows
us to improve our target production to meet the needs for visa
allocation.
By statute, an application for adjustment of status can
only be filed if an immigrant visa is immediately available to
the applicant. USCIS regulations define that to be if the
priority date of the underlying petition is earlier than the
cut-off date on the State Department monthly visa bulletin.
Because of these requirements, USCIS is unable to accept an
application and begin the adjudication process in advance of
visa availability the way the State accepts applications for an
immigrant visa. We are also unable as a result to limit the
number of applications accepted in a given month to the actual
number of visas available. Rather, as many as qualified can
file for adjustment of status during the window provided by the
visa bulletin. This can lead to more applications than visas
available, resulting in applicants being provided interim
benefits such as work authorization and permission to travel
until a visa number is available.
Last July was a witness of that scenario. In some cases
where visas are unavailable to each individual application
accepted, the wait for some adjustment of status in the
employment categories will be measured in years. Over the past
few years, USCIS has built up an inventory of applications for
some visa categories that cannot be adjudicated because the
number of filings exceed the number of visas actually
available. It has also admittedly built up a backlog of
applications for some visa categories where competing
adjudication priorities have prevented timely completion of
cases.
USCIS has a fee structure now and surge response plan that
is financing the capacity enhancements necessary to eliminate
the current adjustment of status backlog and to sustain a
higher capacity for timely adjudications going forward.
To maximize visa number usage while working office backlog,
USCIS has adopted a production strategy that focuses on
completing cases where visas are immediately available.
Pre-adjudication includes completing all required
background checks and resolving all eligibility problems except
for visa availability. This allows immediate approval and visa
number allocation as visas become available.
USCIS works closely with State and more closely than ever
to exchange information critical for their managing the visa
allocation process. We are in weekly contact and share forecast
and production information. We are also working together on a
plan to forward all approved family-based visa petitions to the
State Department to enhance their ability to accurately
forecast demand for numbers.
Though we still have challenges to overcome, USCIS is
currently showing improvements as a result of our process
changes. For example, as of April 25, 2008, USCIS has
adjudicated over 65 percent of its fiscal year 2008 target for
employment-based visas. With 5 months to go in the fiscal year,
this is a strong start. We plan to continue implementing
process improvements and new reporting mechanisms to manage
these important applications.
I look forward to updating you on our continued progress
and am pleased to answer any questions you may have.
[The prepared statement of Mr. Aytes follows:]
Prepared Statement of Michael Aytes
Ms. Lofgren. Thank you. Now I'd be pleased to hear from
you, Mr. Edson.
TESTIMONY OF STEPHEN A. EDSON, DEPUTY ASSISTANT SECRETARY OF
STATE FOR VISA SERVICE, UNITED STATES DEPARTMENT OF STATE;
ACCOMPANIED BY CHARLES OPPENHEIM, CHIEF, VISA CONTROL AND
REPORTING DIVISION, UNITED STATES DEPARTMENT OF STATE
Mr. Edson. Thank you, Chairwoman Lofgren, Ranking Member
King and distinguished Members of the Committee. It is a
pleasure to be here this afternoon to provide an overview of
the Department's role in managing and adjudicating immigrant
visas whose numbers are limited by law. Let me first give you a
broad view of processing and steps the Department has
undertaken, and then I'll focus on the specifics of the number
allocation process for immigrant visas as managed by our
Immigrant Visa Control and Reporting Division.
The Bureau of Consular Affairs has made dramatic
improvements to the visa process since 9/11 and continuously
evaluates that process to identify new ways to enhance security
and increase efficiency. We've mandated the use of an
electronic visa application form for nonimmigrant visas. We are
beginning work on the immigrant visa version of the form and we
have transitioned to full electronic connectivity with our
department security clearance agencies. We fully transitioned
from 2 to 10 fingerprints to ensure consistent screening of
foreign nationals entering the United States.
These enhancements have allowed us to improve service and
security despite dramatic annual increases in the volume of
visa applications. Our transaction to electronic processing
also involves more effective use of backroom domestic
operations at our National Visa Center in New Hampshire, where
we manage cases, collect documents and fees from sponsors,
perform initial fraud checks and schedule appointments for a
growing number of posts.
These strategies give consular officers overseas the
ability to focus specifically on the task of visa adjudication
that must be done abroad and permit them to make better
decisions with the best possible information developed for them
in advance so that interviews can be focused and targeted.
The Department of State is responsible for the allocation
of numerically limited immigrant visa numbers under the
authority granted by Section 203 of the Immigration and
Naturalization Act. These visa numbers are allocated based on
congressionally mandated preferences that decide overall total
limits for each category and per country limits within each
category.
The Immigrant Visa Control and Reporting Division's main
responsibility is the administration of this complex series of
annual numerical limitations. Our goal is to have the issuance
level come as close as possible to 100 percent of the numbers
available each year without exceeding those limits. We also
want to maintain a steady flow of applications throughout the
year to ensure appropriate use of government resources and to
provide good customer service to the applicants.
Over the past 3 years, we have a proven record of using
over 95 percent of the annual worldwide numerical limit. The
Department works closely with United States Citizenship and
Immigration Service on data exchange to allow for maximum use
of numbers under those annual limits and in a stable,
predictable manner. This is extremely important for the
employment-based categories where CIS currently uses
approximately 90 percent of all available visa numbers. Section
203(g) of the INA directs the Secretary of State to make
reasonable estimates of the anticipated number use in order to
maximize numbers under those limits. When making such
estimates, it is necessary to take into consideration the
number of variables based on the best information which is
available to us. Should there be a change which could not be
anticipated, it can have an impact on number use obviously.
This makes the determination of the monthly cut-off date
particularly difficult at the end of the fiscal year since
there is little, if any, time to make adjustments to stay under
the 100 percent. While we always strive to reach that 100
percent, increasing our percentage above 95 percent is
difficult as we are statutorily barred from exceeding the
annual limits.
On a given day, immigrant visas are issued in about 130
embassies and consulates abroad. Adjustments of status, which
use the same numbers, are granted at about 90 to 100 domestic
USCIS facilities. The Department of State tracks that daily
number usage and requests from our consular sections abroad and
from USCIS. On a monthly basis the Visa Office determines the
number of visas that can be allocated for each visa category to
each country on that worldwide basis. As stated previously, our
goal is to come as close as possible without exceeding it, and
we strive to increase cooperation with CIS to make our record
even better.
Again, I thank you for the opportunity to testify and am
happy to take your questions.
[The prepared statement of Mr. Edson follows:]
Prepared Statement of Stephen A. ``Tony'' Edson
Ms. Lofgren. Thank you very much. And we will have some
questions, I'm sure. I will begin. Let me start with USCIS,
because--I will start with this premise and it really is the
basis for the bill introduced by myself and Congressman
Sensenbrenner, which is that the Congress enacted the
immigration laws and we put a number in there. And the
expectation is that those are the numbers that we--in law that
we would allocate and yet we have not.
[The bill, H.R. 5882, follows:]
Ms. Lofgren. I don't want to just berate. I am searching
for how we can help accomplish the goals that Congress has set
into the law.
I hear State Department's technology issue. In fact, I had
an opportunity to look at the London Embassy a couple of years
ago on the new technology. It is very cool. Where are we in
USCIS on the technology front? Is part of our problem our work-
flow problem, a technology problem? We heard earlier in the
year, in last year about the transformation program. We haven't
heard anything about it in a while. Can you tell us what role
that plays and where the transformation program and IT is?
Mr. Aytes. Yes, ma'am. The transformation is going through
a procurement process right now. We anticipate awarding a
contract to a prime vendor later this summer. We already have,
using some existing contracts, a pilot in place that we are
using to process orphaned petitions. That has proven to be
fairly successful.
You are correct. One of the issues for us is having the
technology infrastructure that supports the production
management of cases. But one of the things that we found in
working with State over the last few years is that part of our
focus has had to shift. Traditionally we have looked at
processing cases on a first in, first out basis to be fair to
all customers. Well, that is not the optimal model when it
comes to trying to maximize visa issuance because the first--
the oldest case may be for an applicant who is going to have to
wait a far lengthier period of time before they are going to be
able to immigrate. So now we're moving more and more toward
processing petitions, not just adjustment applications, but
petitions based on anticipated shifts in priority dates from
the State Department. That is what has led us to do a far
better job this year with respect to adjustment applications
and utilization of visa numbers.
Ms. Lofgren. Short of fully implementing the transformation
program, what steps is the agency taking, particularly in light
of last July's visa bulletin dust-up to ensure that it is going
to actually adjudicate sufficient cases to use all of the
immigrant visa numbers this fiscal year?
Mr. Aytes. That has to do with the increased coordination
with the State Department. Where we are talking weekly about
moving priority dates forward, that is more of a joint
discussion at this point than it was historically. We are able
to provide far more data to State with regards to our existing
inventory so that they understand the chargeability and they
can understand if they move a priority date forward what the
anticipated yield might be in terms of additional applications
for an immigrant visa or for adjustment coming forward. In
those respects, I think we are making substantial progress.
Ms. Lofgren. Let me ask the State Department really the
same question or a similar question. What changes in the law
could we make that would make it easier for you to do your job
and allow all of the visas to be allocated?
Mr. Oppenheim. I think the REAL ID Act of 2001 was a very
good step forward in that regard. That eliminated the per
country limits if there were going to be otherwise unused
numbers. Those per country limits in earlier years had often
prevented having the maximum amount of numbers used. So that is
a tremendous step. The contemplated bill will be the final
step, I believe, and it will allow us instead of having to have
unused numbers fall across to the opposite category, they can
be retained for use in that category the following year. That
is a tremendous step forward and will allow--if for one reason
there was--we were unable to use the numbers this year, then we
would have the following years to use them.
Ms. Lofgren. So that would give you a little leeway in your
estimates? You wouldn't have to hit perfection every----
Mr. Oppenheim. Exactly. It is a perfect solution.
Ms. Lofgren. Well, that's good news. I think that the
crossover of unused between family and business probably was
established at a time assuming that there would be--the reason
for the use was lack of demand when in fact it is lack of
processing. So the whole assumption is incorrect and I don't
think it is working--it is not working at all right now is what
you are saying?
Mr. Oppenheim. Correct. The events have overtaken the
original enactment of----
Ms. Lofgren. Very good. Well, Mr. Sensenbrenner is a Member
of the full Committee, not the Subcommittee. But I'll make sure
that he also knows that you're happy with that provision of the
bill.
My time has expired. So I will turn now to Mr. King for his
questions.
Mr. King. Thank you, Madam Chair. And again, gentlemen, I
appreciate your testimony. Just as I'm looking as these
numbers--and I'm going to bring some of my own numbers out in
addressing Mr. Aytes' testimony. My math comes out--the
statutory limit in these categories we're talking about is
226,000 plus 140,000. So for a total of 366,000 annually. If
that meets your numbers. And then I look at the reported
numbers here that for 2007 we reached the number of 194,900 in
the family-sponsored preferences. And in the employment-based
preferences, we reached the number of 162,176. So adding those
together, it comes 350,076 out of the 366 available.
Is that consistent with what you have for records--I'm
watching Mr. Oppenheim. So perhaps I should send him the
question there.
Mr. Oppenheim. The family total is actually approximately
203,000. So it was a little bit more.
Mr. King. So that would be another 9 to 10,000 more. Does
that mean, then, that you have reached this limit almost
perfectly, 99.something percent of the available slots for
2007?
Mr. Oppenheim. Within about--2007 we were under----
Ms. Lofgren. Could you turn your mic----
Mr. Oppenheim. During the course of the last 3 years, we've
done about 95 percent of limit. Last year there were
approximately 22,000 unused in the family category versus the
limit. One hundred percent of the numbers available in the
employment category were utilized last year.
Mr. King. But if I add these two numbers together that are
in my chart and then add the correction in, we are up to
365,000 total. What is your total for both categories, the
family-sponsored and the employment-sponsored?
Mr. Oppenheim. My total is approximately 202,000 on the
family and approximately 154,000 on the employment.
Mr. King. Okay. I'm doing the math. 356 is your number. We
are a little bit off on this. I think, though, the bottom line
comes back and remains the same, which is as you testified, it
is really not possible to reach 100 percent without taking the
risk of going over the statutory cap.
Mr. Oppenheim. Correct.
Mr. King. And then I thank you, Mr. Oppenheim. And I turn
back to Mr. Aytes then.
In the report there was, I believe referenced by Chair
Lofgren in her opening remarks, that there was a 17 percent
decrease in legal immigration from--in this past year. And it
says--in my report it says due primarily to application
processing issues at USCIS. What would that be, that 17 percent
reduction that was referenced in the Chair's opening statement?
Mr. Aytes. Well, application processing issues is a very
broad phrase. Our adjustment--our numbers in 2007 were about 17
percent lower. But that was a result of three things. First, in
the last 10 years there have only been 2 years that were higher
than 2007 and that was 2005 and 2006. The reason it dropped in
2007, the primary reasons, were the REAL ID legislation lifted
the cap on asylee adjustments. That allowed us to move a
backlog number of asylee adjustments into the production
process. After the REAL ID Act was passed, we developed a 2-
year production plan. So our production really surged in 2005
and 2006. It dropped off in 2007 as we brought that back into a
better equilibrium.
Mr. King. I do understand that. In other words, you had
your surge of applications that took place but also you had a
surge of processing that threw the numbers a little out of
balance. So it came back to a little more normal level for
2007.
Mr. Aytes. Yes, sir. There was also the effect of two of
the pre-existing capture programs. There are basically three
programs that allow the recapturing of unused numbers. The REAL
ID Act allowed for the recapturing of numbers that were unused
in 2001 through 2004, about 50,000 employment-based numbers.
Mr. King. Thank you.
Mr. Aytes. And the American Competitiveness Act of the 21st
Century allowed us to recover unused numbers from 1999 and
2000. That allowed us to increase production and collectively
grant permanent residence to more individuals, and we primarily
were able to take advantage of that in 2005 and 2006. So again
that caused the corresponding drop-off in 2007. Those changes
alone account for about 50 percent of the drop in 2007 from
2006. The remainder was that we were moving out of our backlog
elimination program. The subsidy that the Congress had afforded
us had ended. We were downsizing our capacity to a degree. So
we were not processing as many cases in 2007 as we were when we
were on a backlog elimination mode in 2006.
Mr. King. Thank you. And with indulgence, a couple of
pieces of curiosity. I'd like to close fairly quickly here.
One of them is how many were admitted to categories that do
not have limits? We are talking about limited categories here.
But there is also other categories where it is unlimited,
especially to the family-sponsored immigrants.
Mr. Aytes. We can get you that information. There are a
broad number of categories from immediate relatives to refugee
adjusts, asylee adjustments, certain other categories where
there are not numerical limits.
Mr. King. May I just ask that so that we are talking about
this within the context of the overall immigration policy. And
then in conclusion and in following up on the Chair's inquiry
of modernization of USCIS, my question was simply going to be
are these applications digitized. But I think I should get a
little more precise with that and ask if--of all of the
applications that come in and all the processing that you have
and including the religious worker visas, but of all of them,
is there a database that exists that I could sit down in a room
with your data processors and start to ask analytical questions
and those categories could be sorted in a fashion that would
satisfy my curiosity or are we dealing with paper records that
take forever from a manpower standpoint to be analyzed?
Mr. Aytes. We are at this point dealing with very basic
systems that give us inventory control and the ability to
manage the processing of cases at a very basic level. We are
working under transformation to give us that analytic
capability, not only to be able to look at the cases in more
detail, but be able to determine which cases need what level of
attention in a far better way than we are able to do today.
Mr. King. I would just submit that from my view I would
look forward to the kind of request of this Congress that would
allow us to bring these records into the 21st century so that
we can provide the efficiency that this government should
provide.
And I thank you all for your testimony. And, Madam Chair, I
thank you and I yield back.
Ms. Lufgren. The gentleman yields. I recognize the
gentleman from Chicago, Mr. Gutierrez.
Mr. Gutierrez. Mr. Edson, I'd like to ask you because I
have your bulletin here--and English is my second language, so
bear with me. But it sets an annual minimum--you kept using the
word ``limit''--of family-sponsored preference at 226,000. And
then when I go to Immigration Nationality Act, it says in no
case shall the number be computed on the--be less then 226,000.
So is 226 the maximum or a minimum? What is it, is it a floor?
Mr. Edson. If I could defer to my colleague, Mr. Oppenheim.
Mr. Oppenheim. Yes, the 226,000 was established as a floor.
Mr. Gutierrez. Good. It is a floor. So the next time I get
in line at Target and it says no limit, 10, I shouldn't feel
like I should use the Oppenheimer rule here and say I can bring
20, right? It actually means 10. So your whole argument about,
well, we don't want to exceed, you actually don't want to
exceed the minimum, the floor. So there really is no limit. It
says shall not exceed. I'm reading this and you said it is a
floor, just using your word. You said it is a floor--shall not
exceed the annual minimum family-based preference of 226. And
it says minimum, and then the statute, it says shall not
exceed.
Mr. Oppenheim. The minimum floor is the limit for the year,
though, that we are not allowed to exceed.
Mr. Gutierrez. Really? Where is that in the statute? I just
read you the statute.
Mr. Oppenheim. Well, the computation--the way the annual
limit is determined, we start out with a maximum level of
480,000 visas. From that we subtract the amount of immediate
relatives who were processed the preceding year. Then we add
back in any potential unused employment numbers. Whatever that
result is would be the annual limit. If it were 250----
Mr. Gutierrez. So there is another part of the statute?
Mr. Oppenheim. Yes. If that resulted in 250,000, that would
be the family limit. But if the total was 100----
Mr. Gutierrez. Thank you. It is just I read your bulletin.
I think you might want to add that to your bulletin. Because if
I read the bulletin, it says minimum. And as I read the
statute, it says shall not exceed. So when I look at those two
parts of it, obviously not understanding your comprehensive
understanding of the way it works, that that would be it. So if
we went back--and trying to respond to the minority here--we
went back and recaptured all of these family-based visas and
went back to 1992, as the gentlelady--chairwoman proposes to
do, we would recapture how many?
Mr. Oppenheim. Approximately 95,000, which have not already
been recaptured in one form or another.
Mr. Gutierrez. Okay. So 95,000 would reduce the waiting
limit for someone waiting for their brother in the Philippines
from 21 years to 20 years?
Mr. Oppenheim. Potentially.
Mr. Gutierrez. You guys issue the bulletins.
Mr. Oppenheim. Correct. So----
Mr. Gutierrez. Okay. Let me just ask you. What is the max
you know of, family reunification under these visas, for a
brother? I'm not--you know, for a brother, immediate family
member. What is the maximum waiting period from any country?
Mr. Oppenheim. For the Philippines it would be March 8,
1986.
Mr. Gutierrez. Okay. So I'm not off base here. It is 22
years. So if we recaptured all of these visas, maybe we would
cut 6 months off of that wait for that brother? So instead of
him being--if he is 21, 43 years, he would get here when he was
42\1/2\ years. And whoever is applying for them, if they were
30, he would only be like 50 some years when he finally got his
brother here. I just want to put this in some context since we
heard about all these people coming and all this surge to
America and how this might impact the surge. Indeed, is it not
true that these visas for the most part--I mean, in the family
we are talking about a husband, a wife, right, for permanent
residence? Just stop me when I name a person that isn't
included in here. We're talking about children, right,
children. And we are talking about brothers and sisters. Not
talking about aunts and uncles and cousins, are we? Those
aren't included, right? It has just got to be in the immediate
family. Well, it seems to me to be the great American
tradition, according to my colleagues on the other side, about
family values and bringing families together. I would think
they would be cheering on and applauding us as we wish to bring
a husband and a wife, brothers together, husbands and wives and
children together.
So I just wanted to kind of put in some kind of context the
kind of surge language that we heard earlier. And hopefully on
the second turn I will have some more questions if the
gentlelady gives me a second chance. I'd like to ask you a few
more questions. Thank you so much for your testimony.
Ms. Lofgren. I think if we can stay--it has been less than
an hour--we might do a second round of questions since we have
got you here and this is a technical issue, but very intensely
interesting to all of us.
I'm just looking at the visa bulletin. I don't know Mr.
Oppenheim, but your name is famous when it comes to the art of
predicting these visas. For example, if you are a member of the
profession holding an advanced degree or a person of
exceptional ability and that has been already--you've been
judged that person of exceptional ability with advanced degree
but you were born in China, you can't get a visa; even though
the Department of Labor has already said you've been offered a
job that there is no American available to fill, only those
that filed in 2004 are getting their visas today. And as Mr.
Gutierrez has mentioned, if you are the husband or wife of a
lawful permanent resident of the United States, somebody who
played by all the rules and you were--your spouse was born, you
know, in the Philippines, you're only getting your visa this
month if you filed in June of 2003. So we are keeping husbands
and wives who are following the rules apart for a long time.
Is there any way to estimate--I don't know if you had a
chance to take a look at the bill that Mr. Sensenbrenner and I
introduced--what kind of relief would be given in the two cases
I have outlined?
Mr. Oppenheim. The recapture would--at this point, it would
be approximately 225,000 numbers combined, both family and
employment. It would provide a fair amount of relief in the
employment. It would be--we would be able to advance, for
example, the China and India cut-offs in the second preference.
Many of the employment categories are already current. So it
would provide some relief, not a lot.
Ms. Lofgren. Right. What about the husbands and wives who
are separated?
Mr. Oppenheim. The husbands and wives, the 93,000 we would
recapture would be--about 50 percent of those would potentially
go to the husbands and wives based on the calculations, the way
the annual limits are determined.
Ms. Lofgren. Okay. So it is not going to be immediate, but
we----
Mr. Oppenheim. It would be a first step.
Ms. Lofgren. The first step to healing the pain. One of the
things that we used to have was a temporary visa so that
spouses who were separated wouldn't have to be apart. And that
may be something we are going to want to take a look at if we
proceed, if this doesn't really solve--you know, the idea that
a husband and a wife--when you take your marriage vows you mean
it and then you have to live apart for half a decade. That just
doesn't seem really like the American way to me. So in addition
to this, maybe we need to explore other possibilities. I'm
wondering--and maybe this isn't a fair question. But the
Department of State's technology seems to work fairly
efficiently. And you have access to the databases, you can pull
up the pictures and the biometrics and your network. One of the
questions I have had is whether we could simply expand that
system that already exists to the Department of Homeland
Security and have one system rather than two competing systems.
Do you think, either of you, whether that would be viable?
What is the problem with that, if there is a problem?
Mr. Aytes. If I may. Both of those systems are somewhat
tailored. We are working to try to share data more effectively
through a data share initiative and we are now importing
information from their systems such as biometrics, photographs
and identity information so that we can verify identity at an
early step in the process before we are issuing documentation.
We are making steps in that respect. I think it would be very
difficult for us to completely use one system to serve all the
varying purposes and the services that we provide.
Mr. Edson. We do coordinate very closely on our automation
needs on information sharing and data, particularly at a
technical level database interoperability. One of the real
lessons we learned after 9/11 was the importance of focusing on
making our database systems interoperable rather than talking
about monolithic unified systems. We have--in the State
Department we have a single database, a corporate database
structure and then use applications that are tailored to the
specific process which would be different than the CIS process
to feed back into that back end and we do share a common vision
of the end of the transformation process being a completely
sort of transparent view into each other's data sets.
Ms. Lofgren. Let me just have a final question. Has the
Department of State been involved in the development of the
transformation plan?
Mr. Edson. Certainly. I actually sit on the--I forgot what
it is called--the Transformation Steering Committee, I think.
But, yes, we've been consulted all along.
Ms. Lofgren. We may want to have a hearing on the whole
computer issue at some future date, I think. We'll get really
nerdy on you and take a look at it.
So I will defer to Mr. Lungren for his questions now.
Mr. Lungren. Thank you very much, Madam Chair. I'm sorry I
was late. I was greeting constituents on the east steps of the
Capital, young people, and talking to them about this great
institution we have here. So I'm sorry I have missed most of
the testimony. But this is just a general question I have, and
any one of the witnesses or all of the witnesses can answer.
I first started on Judiciary Committee, Subcommittee on
Immigration in 1979, served on it for 8 years, left 2 years
later, came back here after a 16-year respite in California,
got back on the Immigration Subcommittee. And some of the
issues just remain as they were back in 1979 and through the
'80's. And one of the things that really concerns me is that
while we struggle with the issue of illegal immigration, we
have this other body called legal immigration. We have people
who follow the rules and yet we seem to have backlogs and
backlogs and backlogs and we seem to take time and time and
time. And I realize you've been here and presented reasons why
and so forth.
So let me just ask two questions.
Number one, is there any suggestion that the reason we
continue to have backlogs and the reason we can't move faster
because of the heightened concern after 9/11, number one?
And, number two, do any or all of you understand the
frustration that is out there among those of us in Congress who
want to have a system that works and who find it difficult to
defend a system when people say, folks who want to come here
illegally have, until recent times, had a fairly easy job of
getting over here, but folks who follow the law and do
everything they are supposed to wait for the bureaucracy to
work for seemingly unacceptable periods of time?
Do you understand that? Is that totally outside the scope
of reason? And if you understand it, how do we in Congress work
with you to get the sense of urgency to get that side of the
immigration house working?
Mr. Aytes. If I may, certainly we do understand it. We get
the same complaints and concerns that you all hear each day.
And we have to deal with the issues that it creates locally,
just as you do.
There are really two kinds of backlogs, though, that we
need to speak of. Certainly we have processing backlogs at
times. We had a backlog reduction effort over 5 years to try
and eliminate some of those issues, with some success. We are
working through a surge of applications right now. It is our
responsibility to process those cases timely and to provide
people the services that they have applied for and are eligible
for. We understand that responsibility.
But there is a second backlog that we are also speaking of
here. The law sets certain numerical limits on how many people
may immigrate to the United States in many of these categories
annually. We may approve that petition, and that person may by
law then still have to wait because demand is so far greater
than the available supply of visa numbers that the person is
simply--it is oversubscribed. It is like a movie show that
there are far more people who want to get into the movie than
there are available seats, and people have to wait outside the
movie theater for the next show. Well, we do that on a massive
scale.
Some of the numbers that you have cited with people who
have are waiting for 20 years or more to immigrate, that is not
because of we have a petition or because they have an
application for permanent residence. It is because they are so
far back in that queue of people waiting to immigrate because
there is a mismatch between the eligibility category of how
many people can qualify to get in line versus the number of
people who are allowed to immigrate in those categories each
year.
And we feel that pain, as well, because it is hard for
people to understand two different kinds of backlogs. And if
you have a relative who is waiting that long, you are just as
likely to come to either of our agencies to complain about our
backlog and our inability to process that case and get your
relative here as you are to understand that there is a
completely different process.
Mr. Lungren. Okay. The second type of backlog is actually
on Congress, meaning that we make decisions as to how many
numbers you can have in the certain categories. And I
understand that. And that is a judgment we make.
With respect to the processing side of it--and you say that
you have worked on improving the surge and so forth--where are
we on that right now? What would you say in terms of how the
institution stands up in getting people through that, as
opposed to where it was 5 years ago? And where could we expect
to be in a couple years?
Mr. Aytes. Relative to 5 years ago, we are far, far better
off than we were.
Relative to where we were a year ago this time, before the
surge in applications that we saw as a result of interest in
people filing early before our fee changed, before the
adjustment opportunity that people had, 300,000 people, to
apply for permanent residence based on the Visa Bulletin,
before the huge interest in naturalization that we saw last
summer, we are not where we were a year ago.
But we have a plan with this fee rule, and we are making
progress. We have increased our goals, for example, in
naturalization. We are going to complete 36 percent more cases
than last year and still maintain our commitment to quality in
adjudicating each and every one of those applications.
Under this plan--and we are on target--within 2 years, we
will not only be back where we were before the surge, we will
be meeting the service levels that we committed ourselves to
when we announced those fee changes.
Mr. Lungren. I thank the Chair.
I would just say that the good news is people still want to
come to this country in overwhelming numbers. The bad news is
it is always a challenge for us to deal with that. And I hope
we will never be in a position where people don't want to come
to this country.
Thank you.
Ms. Lofgren. Thank you.
Mr. Gutierrez is recognized for 5 minutes.
Mr. Gutierrez. Thank you.
First of all, I want to thank all of you for your work and
your public service. I didn't say that the first time around. I
really mean that, because my staff is always calling you folks,
because we have hundreds of people that stream into our office,
literally hundreds, every week, and most of their questions are
directed either to the Visa Bulletins, which is pretty easy--we
give them an answer, we tell them where they are in the queue--
or you have the application and we are trying to get that
application.
And the citizenship stuff is working, at least in Chicago,
is working very well, and people are--the citizenship
applications--we have noticed people more quickly becoming
citizens and getting through the process. So I want to thank
you about that.
I know we have to talk about nationally, too. But I am
excited about meeting the 1 million citizenship goal in this
year. So I think that that is a really exciting prospect.
And we are going to do everything we can to keep you busy
and keep all those people employed and have another 8 million
to 9 million permanent residents out there that we want to keep
coming your way.
I did want to ask, because, as I look at this--and without
getting into a conspiracy of Republicans and Democrats--but it
seems that, as I look back to 1992 through the current year,
that there is a difference in the way the visas were allocated,
in terms of reaching the maximum number.
Under Clinton, for example, from 1993 through 2000, now
throw in 2001, you had difficulty reaching the number of
employment-based visa, much more difficult problem reaching
those than you did reaching families. I mean, there were some
years under the Clinton administration it was zero, literally
zero, in families.
Then, when we got the Bush administration in, and you see
President Bush came in in 2001, then it was zero, zero, zero,
zero, zero, except for 2003, it has been zero in the
employment. Just the opposite. So you guys have done a stellar
job on employment, but then we got increases in families.
Is there any reason other than someone would think we were
pro-business and get the business ones done and maybe family
took a backseat, since it is zero for 80 percent of the years
of the Bush administration on and obviously an increase in
family?
Mr. Edson. Thank you for the question. One of the things we
haven't spoken about yet is demand by immigrants that come to
the United States.
In the 1990's until the dot-com boom, thereabouts, the
numbers were available. The Visa Bulletin each month, month
after month, said that the number was current. Anybody who
wanted an employment-based visa could get one, and there wasn't
the demand. I think that is a large part of what you are seeing
there is that fact.
Mr. Gutierrez. So the reason there were so many unfilled is
there was a lack of demand for them?
Mr. Edson. Right.
Mr. Gutierrez. And there was an increase of demand when
Bush became the President of the United States?
Mr. Edson. There was an increase in demand in the late
1990's.
Mr. Gutierrez. After year 2000, there was an increase in
demand for worker-related petitions right?
Mr. Edson. Right.
Mr. Gutierrez. And, therefore, you easily reached zero,
because you don't have--you have a full demand.
Mr. Edson. Right.
Mr. Gutierrez. Because Mr. Aytes told us it was a question
of demand was greater than supply. So here we have a demand-
and-supply issue.
Mr. Edson. Right.
Mr. Gutierrez. That clarifies it.
I won't give a speech or a sermon or anything about a
conspiracy trying to keep families separated. It is just a
logical thing about how it works in the supply and demand. That
sounds very, very logical.
Then let me ask you, if you could, just so that I
understand it, since I explained to you earlier, as I read it,
it said ``no less than 226,'' and, you know, minimum. And then
Mr. Oppenheim used--I think, take that word back; it was a
floor for family visas.
If you could reconcile, not right now, but reconcile in
writing and say, ``Hey, Congressman, you got that part right,
but here is the part you forgot,'' so that I could better
explain it to other people in the future so that we won't have
another conspiracy that you guys aren't just meeting the
minimum, but actually the maximum, because I think it is
important.
So, Mr. Oppenheim, because I know you have the numbers, so
I am a permanent resident. I am from Mexico. I apply for my
wife. How many years do I have to wait for my wife to get a
Visa to come to the United States? I'm a permanent resident.
Mr. Oppenheim. Probably be 7 to----
Mr. Gutierrez. Okay. And if we recaptured all those family
reunification visas that we are talking about in this
legislation, the 95,000, and half of them went to spouses, that
reduction would be from 7 to what? How many years would I have
to wait for my wife?
Mr. Oppenheim. Maybe 6.
Mr. Gutierrez. Maybe 6. Good. So this is really not going
to cause a wave of people, and this is really about husbands
and wives, people who are here legally in the United States--
you guys don't do any undocumented workers. You don't have a
bulletin, because if you do, I want it, so I can take it back
to Chicago. I am sure people would be happy to see it.
You are talking about legal, permanent residents and
citizens to the United States. That is what you issue Visa
Bulletins for. And those are the only things Mr. Aytes tries,
at least to the best of his ability, to process in his agency.
Mr. Aytes. Yes.
Mr. Gutierrez. Although I am happy the FBI lost that case,
I have to tell you quickly, because I think they weren't doing
their job.
So when people say ``without numerical limits,'' we are not
talking about--we are talking about those without numerical
limits are American citizens, right? That is without numerical
limits. I just want the other side to understand when they use
the words, ``without numerical limit,'' they are talking about
the ability of American citizens.
And I don't think that Congress, when it enacted the
legislation, did not contemplate that an American citizen
should not be able to bring his wife to America or minor
children, minor children, not married minor children,
immediately to America.
So I thank you for your testimony.
I thank the gentlelady and the Chairwoman of the Committee
for her work on this. We kind of put this in the STRIVE Act,
but we didn't go all the way back to 1992. We kind of captured
5 years and then recaptured them, because we thought it was
important. I like this little piecemeal kind of reform of
immigration.
I thank the gentlelady, and I thank her for her time. Thank
you.
Ms. Lofgren. The gentleman yields back.
And I would recognize the gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Madam Chair. And I do thank you for
having this hearing. This is exactly what I was hoping the kind
of thing we would have with you as Chair, and I appreciate it
very much.
And I missed a good portion of the testimony; I will be
getting that. But there are some things that have come up, just
in a personal situation, where we had a plant that was going to
open in Harrison County, and a Belgian company was going to
open it. They were going to hire people in east Texas that
needed the jobs. It was going to be a good thing.
The only thing they were asking was that we would like the
manager of the plant to be from Belgium, where the home company
was. And they had extreme difficulty in getting a visa
approved. I said, ``Well, have your attorney that is working on
it call me.'' From New York, he did and said, ``Well, we have
been waiting forever. Then we are told, `Well, gee, if you pay
a thousand-dollar fee, we will be able to expedite it.' '' So
they pay the thousand-dollar fee, and then, months later, they
said, ``Where is the expedition?'' They said, ``Well, they did
expedite it through one phase, but if you would like it through
the next phase, another$1,000 will get that moving too.''
And so I wasn't familiar with the more than one expedition
fee. I don't know if he got bad information or what.
But then we've had the ombudsman report that indicates that
even though President Bush had said he wanted to dedicate $100
million to speeding up the process of moving these visas
through, that, according to the ombudsman report, Immigration
Service was able to generate $400 million by slowing it down,
creating additional fees.
And so, according to that report, it looked like there was
more incentive to continue to slow things down and have more
money coming into play with than to take $100 million the
President offered to speed up the process.
So I would be curious to hear your responses on those two
issues.
Mr. Aytes. First, I would enjoy the opportunity to take a
personal look at that case and see what happened, if you could
give us the specifics.
Mr. Gohmert. Sure.
Mr. Aytes. Second, we understood people's perception that,
the way the fees were previously structured, that there might
be a sense that we would gain something by being----
Mr. Gohmert. But you understand, once the ombudsman report
came out, it wasn't just a perception. We had a graph that was
more than a perception. It showed, here is the money coming in.
Mr. Aytes. That is the reason why we specifically changed
the fee rule last year. If we delay on processing a case,
because of a capacity issue, because of an eligibility issue,
and we are not able to make a decision in time, an applicant
for a permanent residence will pay no additional fees. Any
additional cost for us to process continued interim benefits,
like employment authorization or travel authorization, will be
borne by USCIS.
We wanted to change that perception. We wanted to change
that paradigm, and that new fee rule made that change.
Mr. Gohmert. Thank you.
``Paradigm,'' that is 20 cents, isn't it? [Laughter.]
I am just kidding. Yeah, that is Texas humor.
One of the things that I heard from one extremely large and
frustrated employer, who was trying to get enough workers to
make a go of things, said, getting a visa takes so long through
CIS--and, you know, people get to be successful businessmen,
often, by thinking outside the box. He said, ``Look, the
Department of Labor does things quickly and efficiently. What
if we get the Department of Labor to help on these things,
where maybe it is an H-1B or a visa where we are showing, as
employers, they have a job, that we have not been able to find
a U.S. citizen to take the job, work through the Department of
Labor to somehow speed it up?''
So my question to each of you, anybody that cares to
address it, any other common-sense kind of changes that could
be made to the law that we could get through? And I know, Chair
Lofgren, Lungren, all these folks here would love to
participate in any kind of changes that we could agree on on a
bipartisan basis to move things more quickly.
We have some that have been proposed. Some we may not agree
on, some--but have you got anything you can leave us with that
may be additional, small, common-sense changes to move things
along? Even if it is something like working with the Department
of Labor on some part.
Mr. Aytes. Well, thank you. We will have to get back to you
on that. We don't have a ready list.
Mr. Gohmert. Is it going to take as long to get back with
us as it would to get a visa for your wife?
Mr. Lungren. You need a thousand bucks.
Mr. Gohmert. Oh, okay. If I give you a thousand bucks,
would you get back with us a little quicker?
Anyway, I am sorry----
Mr. Gallegly. Would the gentleman yield?
Mr. Gohmert. Yes.
Mr. Gallegly. I have listened to the process of all these
thousand-dollar payments and so on and so forth. I have been
dealing with INS for the 22 years I have been here, and I would
just like to make an observation.
If INS was a public company, I would certainly not
recommend to my friends to invest a lot of money in it. I don't
think it is profit-making.
Mr. Gohmert. Yeah. That is true. Reclaiming my time.
I am sorry. I will not interrupt, but I would be curious
about your comments.
Mr. Aytes. We do have a lot of challenges. For example, it
was H-1B season, beginning of April. We opened the filing
window for 5 days. We accepted 163,000 applications for 65,000
available visas and 20,000 available under the Master's Cap. We
have to sort through those. We have completed that process. We
have run that lottery. We are processing the premium cases
timely. And premium doesn't get you any better opportunity,
with respect to the lottery. But after we identify that the
case is a winner of the lottery, we are able to process it
quickly.
We are trying to process all the remaining H-1B cases
within a 60-day time frame after we data-enter those cases. We
understand that people expect a certain level of service from
us, and they expect us to be able to tell them up front, before
they choose to file, how long it is going to take.
I think we've started to get better information out about
our processing times and about our goals. But I do admit that
we have a long way to go.
We are making some progress. That backlog of applications
that we started to receive as a result of the surge of volume
that we received last summer, we are starting to work through
that significantly.
We are going to meet the processing goals that we have
committed ourselves to over a 2-year span. It will be later
than we hoped in the fee rule, but that was before we saw this
surge of applications.
And we do believe we will be able to offer far more regular
service to each individual customer, each applicant, each
company that is filing a petition, as we reach that goal.
Mr. Gohmert. Any other comments, suggestions?
I know you said you need to get back with us. I hope you
will. We are open to proposals.
And I appreciate the Chair's indulgence.
If I could just have this final comment, you know, in
talking to people from other countries and as we travel around
and visit with different groups, and some of them are just
folks on the street, not other governmental officials, we have
so much pride in this great country, I think it is the best
country in the world, but, to some people, their only exposure
to this country is you, in CIS.
And when they say, you know, ``We dealt with the United
States, and we found the most backward, third-world countries
are easier to deal with than your country,'' it kind of hurts.
You are the image that so many people around the world have of
the United States, and I appreciate all the efforts you can
make to help that be a good image.
Thank you, Madam Chairwoman.
Ms. Lofgren. The gentleman yields back.
The Ranking Member is recognized.
Mr. King. Thank you, Madam Chair.
Mr. Aytes, I have listened to this discussion here, and I
am looking forward to further exploring the modernization and
digitation of records.
But I also have another curiosity. And as I read some news
reports from around the country and pick up on the grapevine of
what is flowing and what is going and what people have for
motivations, the question occurs to me that there have been
those who have advocated for expediting these applications in a
fashion inconsistent with the need to provide for our national
security and the background checks.
My question is going to include LPR applications, as well
as naturalization. And I ask you if you are aware of or have
you been appreciate by any Members of Congress, including the
House and the Senate, to expedite these applications, either
LPRs or naturalization, by waiving background checks or been
pressured to reduce the amount of due diligence that is done
with background checks in order to get us through this group
that we have now and get us on the other side and get back
caught back up again.
Has any of that taken place?
Mr. Aytes. I think there is been a general interest in
hoping that we will be able to do more, but do it well and do
it correctly.
We do have certain expedite programs--premium processing,
for example. We do expedite military naturalizations wherever
possible.
I am not aware of any direct contact encouraging us to
consider waiving background checks, consider making changes
that would mitigate the quality of the adjudication, the
decision that we make.
Mr. King. And I appreciate that testimony into the record.
If there were evidence to the contrary or if something like
that happened in the future, how would you deal with that?
Mr. Aytes. I think it would depend on the situation as it
arose. We are going to maintain the integrity of our process,
sir, first and foremost. And we will deal with whatever
suggestions with regards to process changes, whether they be
legislative, regulatory or procedural, as they come. But we are
committed to making a right decision on each application, first
and foremost.
Mr. King. If there were evidence to the contrary or an
incident that could be brought to light that perhaps has taken
place or might take place in the future, your statement to this
Committee is that you will maintain the standards of integrity
in background checks that is consistent with what has been
aspired to in the past and consistent with statute?
Mr. Aytes. We will be maintaining procedures that are
consistent with statute and that ensure the quality of the
adjudication. It does not mean that we are not open to making
changes that don't affect quality.
Mr. King. And if you were, if there were a backlog in
background checks with LPR applications, then that is simply--
would you then expedite any of those applications, or are you
compelled then to wait until you get the background checks
done?
Mr. Aytes. You may be referencing a February memorandum
that we put in place----
Mr. King. Perhaps.
Mr. Aytes [continuing]. That allowed us to--we instructed
our field offices to move forward with adjustment cases where
we had not gotten the final result of the FBI name check.
We did that to come into a parallel process that our sister
agency, ICE, has followed for years, given the fact that we
have the opportunity to remove those people if any information,
derogatory information, comes forward.
Mr. King. If you can find them.
Mr. Aytes. Well, the fact that we are allowing these people
to remain in the United States while their application is
pending with literally all the same privileges of travel and
employment that they would have if we granted their permanent
residence.
Mr. King. And would you be more concerned if that were a
naturalization process as opposed to an LPR application?
Mr. Aytes. Absolutely, because it is so much more difficult
to take naturalization away than it is to take permanent
residence away in removal proceedings. That is specifically why
we did not include naturalization in that instruction.
Mr. King. I thank you, Mr. Aytes. And I appreciate that
being in the record.
And, Madam Chair, I appreciate a second round. I yield back
the balance of my time.
Ms. Lofgren. That is fine.
Let me just ask two remaining questions, and they are
really, I guess, for you, Mr. Oppenheim, or Mr. Edson.
I think there are only two former immigration lawyers in
the United States House of Representatives, myself and Mr.
Goodlatte. And we don't agree very often on immigration issues,
but one thing we did agree on had to do with the per-country
limitation.
We put a bill into the hopper earlier this week to
eliminate the per-country limitation on the employment side and
to ease it on the family side and move it up to 10 percent
instead of 7 percent.
And the question is, if that is enacted, is that going to
be hard to administer, from your point of view, or not a
problem to administer?
Mr. Oppenheim. From a numeric standpoint, no, it would not
be difficult to administer. The problem we would see
potentially overseas and with the service is the surge of
applicants. These would be resource implications.
Mr. Edson. Just to follow up on that, given particularly
China and India, where so much of this work is done and where
our facilities are already operating at full capacity, that
would raise an administrative issue of catching up with the
ability to process timely.
Ms. Lofgren. It is for employment, not for the--now, let me
ask, and this is something I have always wondered, if you take
a look at brothers and sisters, I mean, the most backlogged is
4th from the Philippines. People who filed March 8th of 1986
are getting their visas today.
And I have often wondered, I'll bet you there are people
there who have died, I mean, it is so long, or who have changed
their minds. I mean, maybe they filed when they were 20, and
now they are 45, and they don't want to leave anymore.
Do we have any way of knowing how many people are queued up
in these very old categories?
Mr. Oppenheim. Since you mentioned the Philippines 4th,
there are over 150,000 Philippines 4th preference applicants
that have registered abroad, versus a limit annually of
approximately 4,500.
Ms. Lofgren. And do they keep their status?
Mr. Oppenheim. They keep it alive, yes.
Now, as you mentioned, it is hard to verify. That is one of
the variables which I have to take into consideration: How many
people will actually appear for their interview, assuming, you
know, that they are still out there.
Ms. Lofgren. Well, at this point, we have run out of
questions, run out of time.
We will keep the hearing record open for 5 legislative
days, and if Members have additional questions, we will forward
them to you. We ask, in that case, that you answer them as
promptly as possible so they can be incorporated into the
hearing record.
And, with that, thanks to all who participated. And this
hearing is adjourned.
[Whereupon, at 4 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
I would like to welcome everyone to our hearing to examine the
consistent failure by our immigration agencies to issue all the family-
and employment-based immigrant visas authorized by law each year,
despite the ongoing demand for such visas.
I find it ironic that in a hearing to examine why agencies cannot
issue visas on time each year that we also did not timely receive the
testimony from the agencies before us today. We only received the
Department of State (DOS) testimony at 5:07 p.m. last night and the
United States Citizenship and Immigration Service (USCIS) testimony at
6:24 p.m. last night, with a revised testimony at 9:08 a.m. this
morning. I would hope this does not continue in the future when we
invite you to testify before us again.
There are a limited number of visas available each year to
immigrate to the United States, a floor of 226,000 preference visas per
year for family based immigrants and 140,000 per year for employment
based immigrants.
Each year, the backlog of people waiting to immigrate legally to
the United States grows larger. Approximately four million family-based
immigrants are believed be caught in the legal immigration backlog
today, while another 400,000-500,000 are believed to be caught in the
employment based backlog.
Despite these growing backlogs, the USCIS and DOS regularly fail to
issue the legally authorized number of immigrant visas each year. They
have only met or exceeded the floor of family preference visas in 5 out
of 16 years and only 7 out of 16 years for employment based visas since
1992.
Most recently, the DHS Office of Immigration Statistics observed in
its Annual Flow Report for U.S. Legal Permanent Residents that legal
immigration decreased by 17% in 2007 ``due primarily to application
processing issues at USCIS.''
To date, there has been little public examination of the reasons
for the ongoing failure to issue the legally authorized number of
immigrant visas each year when there is clear demand by qualified
applicants for these visas.
The only recent examination of this problem is by the USCIS
Ombudsman in its 2007 annual report which found that immigrant visas
have gone unused due to:
gaps in USCIS' accounting of cases;
USCIS not processing enough pending applications in a
timely manner; and,
The imprecise art of predicting workflows and demand
surges at the three federal agencies that each plays a role in
adjudicating applications, DOS, USCIS, and the Department of
Labor (DOL).
My colleague, the former Chairman of the Judiciary Committee Jim
Sensenbrenner, and I have developed a proposed legislative fix to not
only recapture these unused visas, but also to reform the process that
forces us to lose the visas for future use.
I look forward to the testimony today to help us better understand
the problems that face the agencies charged with issuing visas so that
we may not only address the problems with an appropriate administrative
solution, but also determine whether our proposed legislative fix is
the right legislative tool to prevent the loss of visas in the future.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
As we have learned over the last year, immigration law is an area
with a lot of ambiguity and mathematical complexity. Today, however, we
are confronting at least one unassailable fact:
Over the past 16 years, the Department of Homeland Security and
the Department of State have failed to issue even the bare
minimum numbers of family and employment-based immigration
visas that are required by law.
This failure has happened even as U.S. Citizens, Lawful
Permanent Residents, and American employers are forced to wait
years - and even decades - for their families and employees who
are qualified and eligible to immigrate to the U.S.
We have been having immigration hearings throughout the 110th
Congress. Everyone comes before this Committee and says how much they
want legal immigration. But the backlog of people waiting to immigrate
legally to the United States grows longer and larger each year.
Families are separated, making illegal immigration that much more
tempting. The best and the brightest give up and go to countries that
want to compete with the United States for scientific and engineering
talent.
The numbers are mind-boggling:
Four million family-based immigrants in the backlog.
Up to 500,000 employment-based immigrants in the backlog.
But the State Department and Department of Homeland Security don't
even issue the full number authorized each year!
I will be interested in hearing the reasons for these shortfalls.
I will be even more interested in hearing what the Administration
proposes to do to close these gaps.
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law
Chairwoman, Lofgren, and ranking member King, thank you for
convening today's very important hearing on ``Wasted Visas, Growing
Backlogs'' In this hearing, we will examine USCIS and the Department of
State's consistent failure to issue the numbers of family- and
employment-based immigrant visas authorized under the law each year,
despite the ongoing and ever increasing demand for such visas.
There are finite numbers of visas available each year for
individuals to immigrate to the United States. The backlog of people
waiting to immigrate legally to the United States is growing longer
each year. USCIS and State have failed to issue the number of immigrant
visas required by law each year. This hearing will investigate the
reasons for these failures and will explore possible administrative and
legislative solutions to address this problem.
Principally, there are two ways to immigrate to the United States,
through employment or through family. Parents, spouses, and minor
children of U.S. citizens can immigrate to the U.S. without numerical
limitation. However, other close family members of U.S. citizens and
Legal permanent residents must wait from 2 to 22 years to legally
immigrate.
The current law requires a floor of 226, 000 immigrant visas per
year to family members. Current law authorizes a minimum of 140,000
visas per year based upon employment in the United States. All but
5,000 of such employment based immigrant visas are awarded to highly
skilled persons. USCIS and State do not issue the visas. There are
increasing numbers in the employment backlog from persons petitioning
from India and the People's Republic of China. There are 400,000 to
500,000 persons seeking employment based visas that are caught in the
backlog.
Despite the backlog, USCIS and State have failed to meet the floor
for these visas. They have failed to meet or exceed the floor of
226,000 family preference visas in 5 out of 16 years since 1992. They
have failed to meet the floor of 140,000 employment preference visas in
7 out of 16 years since 1992. There has been no accounting or response
from these agencies as to why these visas are not being used. The
purpose of this hearing is to question these agencies and find out why
the floor is not being met and why these visas are being wasted.
Ms. Lofgren, has introduced H.R. 5882, to recapture employment-
based immigrant visas lost to bureaucratic delays and to prevent losses
of family and employment based immigrant visas in the future. H.R. 5882
takes the unused visas from 1992 through 2007 and restores them to
employment and family preference floors. Thus, it makes more visas
available for these two categories and uses the unused visas from a
previous fiscal year in the calculation for the number of visas in the
following year.
While H.R. 5882 does a good job of providing a mathematical formula
to recapture the lost visas and make that the pool of visas stays large
for both family and employment based visas, the bill does nothing to
ensure that USCIS or State actually award the visas. It is this latter
aspect that we need to address. I am hopeful that our witness will shed
some light on this. I welcome them and look forward to their testimony.
Thank you, I yield the balance of my time.
Responses to Post-Hearing Questions from Michael Aytes, Acting Deputy
Director, United States Citizenship and Immigration Services
Responses to Post-Hearing Questions from Stephen A. Edson, Deputy
Assistant Secretary of State for Visa Service, United States Department
of State
Letter from Michael Dougherty, CIS Ombudsman,
U.S. Department of Homeland Security.
--------
Note: The document of the U.S. Department of Homeland Security
entitled: Citizenship and Immigration Services Ombudsman, Annual Report
2007, submitted by Michael Dougherty, is available at the Subcommittee
and can also be accessed at:
http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_Report_2007.pdf