[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

                              ----------                              

                             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

                              ----------                              


                       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

                              ----------                              


               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




                                 
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