[Senate Hearing 111-608]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 111-608

         OVERSIGHT OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 11, 2010

                               __________

                          Serial No. J-111-90

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel













                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    74
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2

                               WITNESSES

Mayorkas, Alejandro, Director, U.S. Citizenship and Immigration 
  Services, Department of Homeland Security......................     3

                         QUESTIONS AND ANSWERS

Responses of Alejandro Mayorkas to questions submitted by 
  Senators Cornyn, Feinstein, Klobuchar, Leahy and Sessions......    18

                       SUBMISSIONS FOR THE RECORD

Cutler, Michael W., Retired Senior Special Agent, Immigration and 
  Naturalization Service, statement..............................    65
Mayorkas, Alejandro, Director, U.S. Citizenship and Immigration 
  Services, Department of Homeland Security, statement...........    76

 
         OVERSIGHT OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES

                              ----------                              


                         TUESDAY, MAY 11, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 10:07 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Franken, Sessions, 
Hatch, and Cornyn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. OK. I am glad to have the Director with us 
today. Actually, Director, this is your first appearance before 
the Judiciary Committee since your confirmation. I appreciate 
your being here. You made it very clear at the time of your 
confirmation you would appear, and I appreciate that.
    The U.S. Citizenship and Immigration Services (USCIS) is a 
principal administrator of our immigration policy. It is 
charged with determining who is eligible for a wide range of 
visa categories. It ensures that those who are deemed eligible 
for an immigration benefit have not filed a fraudulent claim 
and do not wish do us harm. The agency allows family members, 
foreign students, artists, athletes, and investors, among 
others, to enrich our economy but also enrich our culture. And, 
most significantly, it makes it possible for immigrants like my 
grandparents to realize their dreams of U.S. citizenship. This 
agency is the face of our National immigration system. Its 
efficient administration of rules and standards is crucial to 
keeping our system strong and viable.
    It has a tremendous responsibility, as do all of the men 
and women who adjudicate visa petitions. As Director, you make 
sure it provides high-quality service. And if I might be a tiny 
bit parochial, I am proud to say that Vermont is host to one of 
four National visa processing centers in the United States. The 
employees at the Vermont Service Center carry out their duties 
with conviction and tremendous care, and I want to recognize 
their excellent record. I have gone by to visit them many 
times. I would invite you to come and visit, Director.
    I have long supported the EB-5 immigrant investor visa, and 
in particular the EB-5 Regional Center program, something that 
Senator Sessions and I have discussed before. The EB-5 program 
brings significant amounts of capital to regions of our country 
that face economic challenges, and it creates jobs for 
Americans. Entrepreneurs in Vermont have used this program to 
revitalize businesses. They have provided economic benefits and 
job creation across our regions. In fact, I intend to soon 
introduce legislation to modernize the program. I want to make 
the program permanent. And my bill will ensure that as this 
program grows, it remains free from fraud or abuse.
    The USCIS implements the United States' humanitarian 
policies. I commend your swift actions to implement Secretary 
Napolitano's announcement that the U.S. would grant temporary 
protected status for Haitians after the recent earthquake, and 
I hope you are generously providing fee waivers for eligible 
temporary protected status applicants. In this same spirit of 
humanitarian aid, I worked with Senator Lugar on the Return of 
Talent Act that would allow lawful permanent residents to 
return to their home countries to assist with reconstruction 
following a natural disaster or armed conflict, without 
penalizing a future application for citizenship. It does not 
seem right that we tell them they cannot leave here to go out 
and help out a devastated country and have it somehow work 
against them. And if enacted, I think this legislation could be 
a terrific help to Haiti's recovery.
    You fulfill our country's historic commitment to refugees 
and asylum seekers, and I have recently introduced two bills, 
the Refugee Opportunity Act and the Refugee Protection Act, to 
strengthen United States' protections for asylees and refugees. 
I look forward to working with you on that.
    I know that Senator Sessions, as so often happens, is 
supposed to be in five places at once, and I will yield to him.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and I do have 
the hearing on the oil spill that is threatening our Gulf Coast 
in the Energy Committee of which I am also a member.
    Mr. Director, thank you for being with us. You bring a good 
spirit and hard work to this job, and you oversee all the 
lawful immigration into America. Last year, we lawfully 
admitted 1.1 million people into the United States, and USCIS 
approved each one of those.
    We are one of the most generous Nations in the world with 
regard to immigration, and we want to continue to be welcoming 
to those who avail themselves of our laws by coming here 
lawfully and who will and have the ability to contribute 
positively to our country.
    Unfortunately, as we have seen twice in the last month, the 
United States continues to be a target of terrorist activity, 
and many of them are getting more sophisticated in their 
efforts. Visa fraud has been rampant in the student, marriage, 
fiance, and religious worker categories, and we must ensure 
that the integrity of the background checks and investigations 
are not sacrificed for the expediency of just reducing the 
backlog. We have too big a backlog. I know you are working at 
that. But we have got to also maintain integrity in the system.
    As you know, Mr. Shahzad, who was arrested last week in 
connection with the failed bombing attempt at Times Square, 
though we are still gathering information on him, we know that 
he was sworn in as a United States citizen just April 9th last 
year, even though he had previously appeared on the Traveler 
Enforcement Compliance System and had come under scrutiny of a 
local Joint Terrorism Task Force in 2004. He was able to obtain 
citizenship, however, because he married a U.S. citizen who 
petitioned on his behalf. In a report released in May of 2002, 
Steven Camarota, Director of Research at the Center for 
Immigration Studies, found that between 1993 and 2001, 48 
terrorists had been charged, convicted, pled guilty, or 
admitted to involvement in terrorism within the United States. 
According to Camarota's study, at the time they committed their 
crimes, 16 were in the United States on temporary visas, 17 
were lawful permanent residents, 12 were illegal aliens, and 3 
had applications for asylum pending. Though there is still much 
information to be gathered on this matter, it appears that he, 
too, may have gamed the system in order to become a naturalized 
citizen.
    As Michael Cutler, former Special Agent with INS for 30 
years, said, ``Immigration benefit fraud is certainly one of 
the major dots that was not connected prior to the attacks on 
September 11th and remains a dot that is not really being 
addressed the way it needs to in order to secure our Nation 
against criminals and terrorists.''
    So we would like to inquire about that. I will not be able 
to stay through the whole hearing but will be submitted some 
written questions on those issues.
    I am also interested in hearing how it is that it seems 
that your agency has ceded E-Verification program integrity to 
the Civil Rights Division. I am not sure that that makes sense 
to me as a way to manage the system. I believe you should be in 
charge of it, and if violations occur, then they should be 
investigated. But I do not understand that process. So E-Verify 
works. It is bringing some integrity to the workplace. It is 
not perfect, but it does help, and it is something we should be 
supporting and not restricting.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Alejandro Mayorkas is the Director of United States 
Citizenship and Immigration Services. Immediately prior to 
becoming the Director of USCIS, he was a partner in the law 
firm of O'Melveny & Myers, and previously served as U.S. 
Attorney for the Central District of California--in fact, 
confirmed by this Committee for that--and prior to that was 
Assistant U.S. Attorney in the same office. He has had years of 
service both in the private sector and in the Government 
sector, and we welcome him here today. Please go ahead, sir.

STATEMENT OF ALEJANDRO MAYORKAS, DIRECTOR, U.S. CITIZENSHIP AND 
   IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Mayorkas. Thank you very much, Chairman Leahy, Ranking 
Member Sessions, members of the Committee. I am privileged to 
appear before you today to testify about the state of U.S. 
Citizenship and Immigration Services.
    It has been nearly 11 months since I appeared before this 
Committee for my confirmation hearing. At that time I spoke of 
my deep understanding of the gravity as well as the nobility of 
the USCIS mission to administer our immigration laws 
efficiently and with fairness, honesty, and integrity.
    In the midst of the challenges we face today, my 
understanding has only deepened. We are a Nation defined by and 
one whose success depends upon being both a nation of laws and 
a nation of immigrants. With tremendous pride as a naturalized 
citizen, a former United States Attorney, and the current 
Director of USCIS, I work alongside 18,000 men and women who 
give so much of themselves as together we seek to reaffirm our 
Nation's history and embrace its future as the world's beacon 
of hope and opportunity for generations to come.
    Almost 11 months ago, I promised you I would conduct an 
overall review of the agency. I have done so, and as a result, 
I have realigned the agency's organizational structure to 
reflect our priorities and more efficiently and effectively 
achieve our mission.
    I created a new Fraud Detection and National Security 
Directorate focused on preventing, detecting, combating, and 
deterring threats to our public safety and fraud in our system. 
Together with our Federal partners and others, we have a 
multilayered system in place to ensure those applying for 
benefits do not pose a security threat or defraud the system. 
We collect fingerprints, conduct name checks, screen 
individuals for criminal activity, and scour applications for 
inconsistencies, security concerns, and good moral character. 
Continuing to uphold and strengthen these safeguards with the 
utmost vigilance is critical to ensuring the integrity of our 
immigration system.
    Our newly established Office of Public Engagement is 
working to ensure we develop and solidify our partnership with 
the public we serve as we review our policies and consider 
needed process improvements. We are institutionalizing how we 
keep our partners fully informed of the issues we confront, and 
we are dedicated to meeting our challenges together with them.
    Our new Customer Service Directorate is developing new ways 
to communicate with and serve the public. We are building on 
best practices in the public arena and the private sector so 
that we can become a model of service and efficiency.
    This week, we are issuing a redesigned Permanent Resident 
Card, commonly known as a green card, which includes some of 
the most sophisticated security technology available to us 
today. The previous green card was designed and placed into 
service in 1998, and only minor changes have been made to it 
since then. Our new card includes additional security features, 
including embedded data and holographs, that make it more 
difficult to counterfeit and easier for DHS to identify fraud.
    We at USCIS are working hard to build a stronger and 
brighter future for our agency and for the public we serve. The 
public's demands and expectations of us and the questions and 
issues you raise help define our goals and aspirations. I look 
forward to working with this Committee and answering your 
questions as best I can.
    Thank you for the opportunity.
    [The prepared statement of Mr. Mayorkas appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Director, I am drafting legislation to modernize the EB-5 
Regional Center Program. I am a strong believer in EB-5 because 
I have seen how well it has worked in my State.
    Now, one of the issues I hear from stakeholders involves 
the economic aspects of the program. Some stakeholders have 
expressed frustration that when an investor petition is being 
adjudicated by USCIS, the adjudicators look at both the 
petition and the business plan attached to it. That can cause a 
lot of delays. I think we can promote efficiency and 
predictability if regional centers are able to seek agency 
preapproval for a business plan in which investors could then 
become involved. It would allow the agency to divide the 
adjudication task between economic experts who would review the 
business plan and immigration experts who would adjudicate the 
investor petitions.
    Do you agree that if you separated the business plan 
approval process from the petition adjudication process, you 
could have more consistent and careful review of business 
plans?
    Mr. Mayorkas. Senator, thank you for your question with 
respect to the EB-5 program, to which I have given a great deal 
of attention. I recognize its economic benefits. We would 
welcome the opportunity to consider the possibility of 
preapproving business plans and applications to establish 
regional centers. We understand the benefit that a regional 
center determination can have on future EB-5 applications.
    I do want to say that we have taken a number of discrete 
steps to improve our EB-5 adjudication process. Most notably, 
we have concentrated expertise in one location where all EB-5 
applications are submitted for our review and consideration. 
Also, in response to public concern about the time it takes to 
review and adjudicate those applications, we have cut the 
application processing time by approximately 50 percent. It 
used to take approximately 8 months to adjudicate an EB-5 
application, and our cycle time is now approximately 4 months.
    Chairman Leahy. My concern is obviously you have to look at 
the immigration question, and you do not want fraud in it, 
although what I have seen on these have been very legitimate 
business people that were trying to raise capital through the 
Regional Center Program. And I just do not want the whole thing 
being looked at as just one single issue instead of breaking it 
down into its component parts to address it in a more efficient 
way.
    When we set up the Regional Center Program, Congress 
intended it to have flexibility to accommodate the realities of 
business, including unforeseen delays that occur through no 
fault of the investor, especially these days where the stock 
market goes up and down, and the availability of capital ebbs 
and flows probably more than we would like. But if you have an 
investor and a domestic business person acting in good faith, I 
hate to see the investor suffer the denial of a green card.
    So would you commit to have your department and your office 
and mine work together to see if we can find ways to make the 
whole process more efficient?
    Mr. Mayorkas. I most certainly will, Mr. Chairman.
    Chairman Leahy. Thank you.
    Now, on another, this is somewhat parochial. The dairy 
industry is not eligible to participate in the H2-A agriculture 
visa program. I am going to introduce legislation to ensure 
that dairy can participate in the H2-A program. I strongly 
support the ag jobs legislation, which would reform the overall 
H2-A program. I realize DHS and USCIS do not play a direct role 
in determining eligibility of H2-A workers. But do you have any 
objection to a change in the statute to clarify that dairy is 
eligible for the H2-A program?
    Mr. Mayorkas. Mr. Chairman, we have been aware that dairy 
workers have not been eligible for the H2-A program merely by 
virtue of the fact that their work is not defined as seasonal 
under the current legislation, and we are aware of the 
articulated need to redress that situation.
    Chairman Leahy. Thank you. And, of course, I mentioned, as 
you know, the Vermont Service Center in my opening remarks. I 
do hear very positive things from people about their work. As I 
said, I have gone and visited it on different occasions. I 
think it is a great example of a successful partnership with 
the Federal Government. I would like to see Vermont and USCIS 
continue to develop this positive relationship. Can we work 
together with Vermont officials and your department to 
encourage that partnership?
    Mr. Mayorkas. I would welcome the opportunity, Mr. 
Chairman. I should note I had the pleasure and the privilege of 
visiting all of the employees in the Vermont Service Center a 
few weeks ago, and the accolades they receive are richly 
deserved.
    Chairman Leahy. Thank you. And they appreciated that, let 
me tell you.
    Mr. Mayorkas. Thank you.
    Chairman Leahy. One of the very important visas the Vermont 
Service Center handles is the Violence Against Women self-
petitions, as you know, helping immigrants who are in an 
abusive situation to seek protection from the Federal 
Government for independence from an abusive spouse or parent. I 
understand USCIS is in the process of improving the training 
program for these VAWA adjudicators. I am sure the petitions 
are handled in total confidentiality.
    How is that training going?
    Mr. Mayorkas. Mr. Chairman, that is going very well. Once 
again, the experts of the Vermont Service Center do an 
outstanding job of adjudicating the T and U visas that address 
the dire situation to which you refer. We are very proud of 
their leadership, not only in executing our adjudication 
guidelines but in developing them and training others to share 
their expertise.
    Chairman Leahy. Thank you. And, finally, the man charged 
with being the Times Square bomber, Faisal Shahzad, entered the 
U.S. from Pakistan on a student visa, then he got a work visa, 
then he applied for a green card, and eventually he was 
naturalized. What are the background security checks he would 
have undergone at each point? Was there information in the file 
that should have been caught as USCIS was reviewing his 
application? I realize it is one thing to look at it in 
hindsight, but what does your review show?
    Mr. Mayorkas. Mr. Chairman, I am constrained, regrettably, 
by privacy rules on commenting on the Shahzad file 
specifically, but I can speak about the process that we as an 
agency follow with respect to the security and background 
checks that we perform.
    Our anti-fraud and our national security preventive 
measures are extremely robust, and their importance has only 
been elevated since I assumed the leadership of the agency. We 
conduct FBI fingerprint checks. We conduct checks of databases, 
including the TECS database. We employ the FBI background name 
checks. We scrub the application itself. We interview the 
applicant. We work collaboratively with our law enforcement 
partners and our intelligence community partners in ensuring 
that each application is carefully scrubbed and scrutinized to 
ensure that fraud in our system or a peril to our National 
security are not effected.
    Chairman Leahy. Thank you very much.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome. We 
appreciate having you here. I want to thank Dianne Feinstein 
for recommending you in the first place. I think you are an 
excellent public servant, and we are very closes, and I think a 
great deal of her recommendations.
    Mr. Mayorkas. Thank you, Senator.
    Senator Hatch. A few years ago, my office worked closely 
with Federal immigration agents to break up one of the largest 
marriage visa fraud rings in the country. As a result of the 
18-month investigation called Operation Morning Glory, 24 
individuals were indicted on 79 counts, including conspiracy, 
alien smuggling, mortgage fraud, and aggravated identity theft.
    Now, let me say this: I do not believe that all foreigners 
who marry Americans are simply looking for a one-way ticket to 
the United States, but I continue to have concerns about the 
prevalent abuses in our country's marriage-based green card 
program. Now, it could easily be called the soft underbelly of 
our country's visa program.
    I often hear from my Utah constituents of situations where 
either they or someone they love has been deceived by a foreign 
national who is committed to the marriage only until they are 
able to remove their conditional resident status. Once their 
temporary status is legally changed, however, some disappear, 
often leaving their spouses with serious financial and familial 
obligations.
    Now, is it true that USCIS officials rely almost 
exclusively on documents, records, and photographs with little 
opportunity for interviews or investigations of the petitioner?
    Mr. Mayorkas. Senator, our process of detecting and 
deterring marriage fraud is far more robust than that. As part 
of the elevation of the Fraud Detection and National Security 
Directorate earlier this year, one of the things that we are 
doing is bringing increased attention to our Benefit Fraud 
Compliance Assessment Program. One of the areas that we will be 
focused upon in that renewed assessment and review process is 
on the marriage fraud issue. I would be pleased to report those 
results to you once our study is undertaken and completed.
    Senator Hatch. I am glad to hear that. Is it true that once 
a fiance or K visa petition is approved, it requires quite a 
high evidentiary standard in order for a consular officer 
overseas to refer a petition back to USCIS for revocation?
    Mr. Mayorkas. Senator, I am not equipped today to answer 
that precise process question.
    Senator Hatch. You will let me know.
    Mr. Mayorkas. If I may take the opportunity to respond 
subsequently.
    [The information referred to appears as a submission for 
the record.]
    Senator Hatch. What about couples who meet over the 
Internet? Are there cases where visa petitions have been 
approved for couples who have never physically met or who have 
only met once or twice?
    Mr. Mayorkas. Again, Senator, I would like to take the 
opportunity subsequent to this hearing to provide you with a 
detailed report of how we address marriage fraud.
    Senator Hatch. That would be fine. I appreciate that.
    Last year, in response to my questions about marriage 
fraud, DHS Secretary Janet Napolitano said, ``There is a 
perception that marriage fraud is a rampant problem in the 
immigration system, but most marriages coming before USCIS are 
bona fide.''
    Does USCIS maintain any statistical information on foreign 
nationals who leave their spouses once they obtain permanent 
residency?
    Mr. Mayorkas. That is one of the very questions, Senator, 
that we will be asking in our Benefit Fraud Compliance 
Assessment of the marriage fraud.
    Senator Hatch. We would like to see that. As you know, I 
want to always be fair to people, and I appreciate what you are 
doing.
    On the ARTS Require Timely Services, the ARTs Act that both 
Senator Kerry and I are sponsors of, nonprofit arts 
organizations throughout the country, including many in Utah, 
engage foreign guest artists in their orchestras, theaters, and 
dance and opera companies. Unfortunately, years of delays, 
errors, and unpredictability have forced some U.S.-based 
nonprofit arts organizations from even trying to bring 
international artists into the United States.
    Now, it is my understanding that there has been a rash of 
unreasonable requests for evidence, or RFEs, from the 
California Service Center that add to the delay in processing 
visas, including O and P visas. Now, I am concerned that these 
RFEs do not adhere to the statutory and regulatory standards 
for determining the qualifications of O and P applicants. I 
understand that a broad review of adjudication procedures is 
underway, but in the meantime, our Nation's cultural interests 
are being hindered.
    Would you care to comment on that and tell us what you 
might do in that situation?
    Mr. Mayorkas. If I may, Senator----
    Senator Hatch. And whether you can support what we are 
trying to do, Senator Kerry and I.
    Mr. Mayorkas. I appreciate your efforts and those of 
Senator Kerry. Senator Hatch, the concerns that you expressed 
with the O and P visa process are concerns that we have heard 
articulated by the public that we serve. A number of weeks ago, 
I appeared in the California Service Center to host an 
engagement session with the community nationwide to hear their 
concerns with respect to the Requests For Evidence that we 
propound with respect to O and P visa applications. We are 
poised to implement procedural improvements to address those 
concerns.
    In addition, just yesterday, we published in draft form a 
new O visa guidance memorandum to our field adjudicators. We 
did so in draft form so the arts community and other interested 
communities could have the opportunity to provide comments to 
us whether the guidance that we intend to promulgate indeed 
addresses their concerns and serves that community well. So the 
concerns that you expressed are concerns that are driving our 
agenda in the O and P visa arena.
    Senator Hatch. Well, thank you, and I appreciate your 
comments on that. I have to comment that we have worked very 
closely with your service, and we really appreciate all the 
help that we have received over the years. We want it to work 
well. We want you to be pleased with what we do. But we get an 
awful lot of constituent work and case work in these areas. And 
it means a great deal to me, the kindness with which we are 
treated, and the help and cooperation that we have. I 
appreciate it.
    Just let me ask one last question. Last year, I included an 
amendment in the Homeland Security Appropriations Act that 
extends for 3 years the Special Immigrant Non-minister 
Religious Worker Visa Program. Pursuant to the enacted 
legislation, DHS is required to produce a report on the 
program. Could you give us some idea when we might expect to 
see that report? And I hope we can continue that because these 
are good people who really do a good job, and they are 
religious workers, and I would like to see us approach this in 
a very, very good way.
    Mr. Mayorkas. If I may have your indulgence, Senator, to 
respond subsequently to the timing question of the report. I am 
not aware of its timing.
    Senator Hatch. I understand, and you sure have my 
indulgence.
    I want to again thank you for the work you are doing and 
the people around you. We are very appreciative, and I know you 
are sensitive to the feelings of people who have these 
problems, and that means a great deal to me.
    Mr. Mayorkas. Thank you, Senator.
    Senator Hatch. Thank you.
    Chairman Leahy. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, for this hearing. 
Thank you, Director Mayorkas, for coming here today. As the 
Ranking Member said, we are one of the most generous countries 
in the world in immigration. Most people do not know this, but 
the U.S. consistently takes more refugees than most 
industrialized countries combined. And I am proud to say that 
my State, Minnesota, consistently welcomes more of those 
refugees than almost any other State. And I want to thank you 
especially for what you do for refugees and asylees.
    I want to talk about the time it takes for family members 
of green card holders and citizens who come in. Right now green 
card holders wait 4\1/2\ years to bring their husbands, wives, 
and minor kids to the U.S. Citizens wait about 6 years to bring 
their unmarried adult children here. It is even longer for some 
countries, as you know. From the Philippines, for example, that 
wait can be up to 16 years.
    Now, I cannot imagine not seeing my family for a month, 
although some of our troops overseas do not see their families 
for as long as a year. But I cannot imagine waiting 16 years to 
see your family. Do you think that these long waits are 
creating a disincentive to enter the country illegally--or a 
disincentive to enter the country legally, rather, and an 
incentive to enter it illegally?
    Mr. Mayorkas. Senator, I appreciate the question. We have 
heard a great deal about the waiting times for family members 
of legal permanent residents, and that is, of course, a 
function of visa availability.
    I must say that I have not given thought to whether long 
waiting times have a causal connection to illegal immigration 
in this country, and I would be hesitant to suppose an answer 
to such a serious question.
    Senator Franken. What can we in the Senate do to--because I 
know you are operating on the laws that we pass. What can we in 
the Senate do to help reduce these backlogs?
    Mr. Mayorkas. Senator, the issue of visa availability and 
visa use is something that is within the purview of legislative 
reform.
    Senator Franken. Yes, that is what I meant.
    Mr. Mayorkas. Yes. Well----
    Senator Franken. I mean, you are sort of answering my 
question with a statement that my question is valid, but what I 
want to know is what can we do. I am not asking you to make 
recommendations--or maybe I am, what can we do to reduce these 
backlogs?
    Mr. Mayorkas. Senator, first of all, allow me to apologize 
for my initial answer. I did not mean to repeat your question 
by way of a declaratory statement. If the Senator is interested 
in actually our best thinking on the subject, then I would like 
to speak with the subject matter experts within my agency and 
our department and circle back, Senator.
    Senator Franken. OK. That would be great, and we can get 
that in writing or get a briefing.
    In 1996, Congress barred people from applying for asylum 
after 1 year of their arrival. In other words, if they had been 
here a year, they could not apply for asylum unless they could 
show extraordinary circumstances prevented them from doing so 
or that circumstances had changed in their country of origin. 
This law has forced judges to deny asylum to pro-democracy 
activists, religious leaders, and victims of torture even after 
they found that they would be harmed if they returned to their 
home country. They just did not have an extraordinary excuse. 
Do you think we should change or do away with this standard?
    Mr. Mayorkas. Senator, I know that there is legislation, I 
believe, that has been proposed to eliminate that 1-year 
waiting period.
    Senator Franken. It is not a waiting period. It is a period 
after which you cannot apply anymore for the asylum.
    Mr. Mayorkas. Correct, and I know that our subject matter 
experts are considering that provision, and I would really 
defer to their judgment and their continued analysis, and 
similar to the prior question, I would welcome the opportunity 
to brief you on their thinking subsequently.
    Senator Franken. OK. Thank you. We will do that, again, 
afterwards.
    An advocacy group in Minnesota told me a story that I want 
to share with you. A woman from Nepal recently came to them to 
seek asylum in the U.S. because Maoist insurgents had kidnapped 
her son. Now, she ultimately decided not to apply for asylum 
because under current law she would be inadmissible because of 
her--she is considered a supporter of terrorists because she 
paid her son's ransom. Do you think there is a place for a 
duress exemption or exception in such a case?
    Mr. Mayorkas. Senator, while I cannot comment on that case 
specifically, I do want to note that within, I believe, the 
first 2 months of my tenure as Director, I had the privilege of 
visiting our office in St. Paul and meeting with the advocacy 
community there to understand their concerns. But there is a 
Supreme Court case that leaves it to the Department to exercise 
its discretion in finding a duress exemption that might not 
otherwise apply, and I believe we are utilizing that exemption 
on a case-by-case basis.
    Senator Franken. Oh, well, that is nice to know. Thank you 
very much, Mr. Director.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Cornyn.
    Senator Cornyn. Good morning, Mr. Director.
    Mr. Mayorkas. Good morning, Senator.
    Senator Cornyn. Thank you for coming. I wonder if you could 
comment on--I guess at this point there are discussions that we 
are hearing reported about the use of parole, which is, I 
understand, a discretionary judgment made by you and perhaps 
the Secretary of Homeland Security to use parole on an 
expansive basis to legitimize the presence of people who have 
entered the country with a visa and overstayed the visa 
actually the correct term is ``deferred action''--use some 
means to allow people who have come into the country legally 
but have overstayed or some other category of person who is 
here without proper legal authorization to stay in the United 
States. Are there any discussions within your agency or at the 
Secretary of Homeland Security level to use deferred action to 
change the status of people in any of these categories?
    Mr. Mayorkas. Thank you, Senator. Our use of deferred 
action and humanitarian parole are utilized on a case-by-case 
basis when a significant public benefit or extreme hardship 
would so warrant. I am not aware of any sweeping determination 
to move from the case-by-case analysis to a categorical 
framework. And so I am not exactly sure of the concern that I 
think underlies your question.
    I will say that we are particularly focused on using our 
discretionary authority when it pertains to the spouses of our 
service members in the military by virtue of the public benefit 
that we achieve in that way.
    Senator Cornyn. Well, I appreciate your answer, and so if I 
can summarize, you are aware of no discussions to use deferred 
action or humanitarian parole on a categorical basis as opposed 
to a case-by-case basis?
    Mr. Mayorkas. That is my understanding. Yes, sir.
    Senator Cornyn. I understand that Senator Durbin and 
Senator Lugar wrote a letter to you about this topic on April 
the 21st. Do you recall that letter?
    Mr. Mayorkas. I do not as I sit here.
    Senator Cornyn. Well, I am sorry to pop it on you, but 
maybe you could take a look at that. I would be interested in, 
first of all, whether you have responded to the letter. We are 
not aware of a response, but I would be interested, if you have 
responded, to get a copy of that response and to learn of your 
views.
    So, again, you are not aware of any discussions, any 
deliberations with regard to the categorical use of deferred 
action or humanitarian parole as opposed to the case-by-case 
determination process that you describe. Is that correct?
    Mr. Mayorkas. Senator, I am sorry. I may have misunderstood 
your question. The question that you pose, is it: Are we 
utilizing those mechanisms on a categorical basis as opposed to 
a case-by-case basis? I know of----
    Senator Cornyn. I am asking not just are you, but are there 
any discussions or plans to do so?
    Mr. Mayorkas. I do not know of any plans. I think we have 
discussed, as we always do, the tools available to us and 
whether the deployment of any of those tools could achieve a 
more fair and efficient use or application of the immigration 
laws. So I would hesitate to say that we have never or we are 
not at all considering the use of deferred action or 
humanitarian parole on an expanded basis. I think we consider 
the tools available to us on an everyday basis.
    Senator Cornyn. Let me give you some more precise examples. 
For example, children who might otherwise benefit from passage 
of the DREAM Act or individuals that might be covered by any 
potential AgJOBS sort of immigration legislation, have there 
specifically been discussions in your agency or in the 
Administration that you are aware of dealing with the use of 
deferred action with regard to either of those categories of 
individuals?
    Mr. Mayorkas. I believe that we have discussed those issues 
and just about every issue that comes within the purview of the 
immigration system when it comes to the tools available to us 
and the application of the laws that Congress has passed.
    Senator Cornyn. But to use your terminology earlier, 
heretofore those have been done on a case-by-case basis, 
correct? And to do so on a categorical basis would represent an 
unprecedented use of those authorities, wouldn't you agree?
    Mr. Mayorkas. Whether it is unprecedented or not, I cannot 
comment, but it certainly would be a deviation from the case-
by-case application of those discretionary authorities.
    Senator Cornyn. Well, by the use of ``unprecedented,'' in 
other words, it has not happened before. It has never been used 
for that purpose before. Correct?
    Mr. Mayorkas. I am not aware of that.
    Senator Cornyn. OK. Fair enough.
    Now, when I was in El Paso recently, I learned that as a 
result of the humanitarian parole practices of the U.S. 
Government, a number of individuals--I think it is somewhere on 
the order of 150 individuals who have been injured as a result 
of violence in Juarez--have been paroled into the U.S. to be 
treated at U.S. medical facilities in El Paso, and that has 
resulted in the uncompensated care provided by the hospitals in 
El Paso ranging in the $3 million range. I believe Silvestre 
Reyes, the Congressman from that area, has written to the 
President about these costs. When we had Secretary Napolitano 
here, I asked her about that and introduced copies of those 
letters into the record.
    I know there is also some additional uncompensated care 
that medical doctors have provided in addition to the hospital 
facilities themselves. If the policy of the U.S. Government is 
such that these individuals are going to be given humanitarian 
parole for purposes of medical treatment, wouldn't you think it 
should be the financial responsibility of the Federal 
Government to pay those bills rather than the local taxpayers 
of El Paso County or the city of El Paso?
    Mr. Mayorkas. Senator, I understand the concern. It is a 
concern that we actually confronted following the tragic 
January 12th earthquake in Haiti when we, in collaboration with 
Customs and Border Protection, our sister agency, were bringing 
in people for emergency medical care. And the question arose as 
to funding for that care, and it is a bit outside my area of 
expertise as to the optimal source of that funding, whether 
Federal or State. I know there are some programs in place to 
provide funding. I cannot speak of whether any such program 
exists to address the situation that you have identified.
    Senator Cornyn. In conclusion, because I see my time is up, 
let me just say that I think in our conversations between you 
and me, I have told you that I am a supporter of sensible, 
comprehensive immigration reform to deal with all aspects of 
our broken immigration system, to hopefully help make your job 
easier, to emphasize legal immigration and encourage it and to 
discourage illegal immigration. But I think it would be a 
mistake for the administration to use administrative action 
like deferred action on a categorical basis to deal with a 
large number of people who are here without proper legal 
documents, to regularize their status without Congress' 
participation. I will just say that to you for what it is 
worth.
    Thank you very much for being here.
    Mr. Mayorkas. Thank you, Senator.
    Chairman Leahy. Thank you, Senator Cornyn.
    Senator Feinstein.
    Senator Feinstein. Thank you very much.
    Mr. Mayorkas, Ali, good to see you again. I gather you have 
moved vigorously within 11 months and reviewed the Department 
and making some changes, and I think that is all to the good.
    I also had the pleasure of suggesting him for United States 
Attorney in Los Angeles many years ago, and I can only say----
    Chairman Leahy. Good suggestion.
    Senator Feinstein.--he had much more hair then.
    Chairman Leahy. When I came to the Senate, I did, too.
    [Laughter.]
    Senator Feinstein. Director Mayorkas, it is my 
understanding that current law states that within 5 years of 
naturalization, any affiliation that would have precluded 
citizenship, like membership in a terrorist organization, is 
prima facie evidence that the person can have their citizenship 
revoked after the fact. In the absence of countervailing 
evidence, the statute, Section 1424, says that a terrorist 
affiliation is enough to authorize revocation.
    We are having a robust debate in the Congress because a 
member has introduced legislation which some of us believe, in 
view of this section, is really not necessary. And here is the 
question. I am not going to ask you to go into the Shahzad 
case, but I am going to ask this question. You have an 
attempted car bombing, a connection to the Pakistani Taliban, a 
guilty plea, all of which could certainly be construed that Mr. 
Shahzad was not attached to the principles of the Constitution 
and, therefore, should have his citizenship revoked. It is my 
understanding that within 5 years from naturalization, this 
section would allow such a revocation. Is that not true for Mr. 
Shahzad?
    Mr. Mayorkas. Senator, thank you very much. Let me first, 
if I may, say that the fact that it was you who recommended me 
back in 1998 to be the United States Attorney is an everlasting 
source of pride for me and something that I remember each day.
    Senator Feinstein. For me, too.
    Mr. Mayorkas. Thank you, Senator. I am myself studying--not 
with respect to the Shahzad case specifically--but if I may 
generalize it, the naturalization process, the application 
itself and the relevant law, as I understand the law. Please, 
if I may, my study is only preliminary. As I understand it, 
citizenship may be revoked if the individual obtained that 
citizenship through fraud or misrepresentation or was 
ineligible at the time of naturalization. And it is an 
evidentiary question whether information obtained subsequent to 
the naturalization or events unfolding subsequent to the time 
of naturalization speak to an ineligibility at the time of the 
application itself.
    Senator Feinstein. I would just call your attention to 
subsection (c), USC Section 1451, subsection (c): If a person 
who shall have been naturalized after December 24, 1952 shall 
within 5 years next following such naturalization become a 
member of or affiliated with any organization, membership in or 
affiliation with which at the time of naturalization would have 
precluded such person from naturalization under the provisions 
of Section 1424 of this title, it shall be considered prima 
facie evidence that such person was not attached to the 
principles of the Constitution of the United States and was not 
well disposed to the good order and happiness of the United 
States at the time of naturalization and, in absence of 
countervailing evidence, it shall be sufficient in the proper 
proceeding to authorize to revocation . . . and the 
cancellation of the certificate of naturalization. It seems to 
me that Mr. Shahzad eminently figures right within that 
definition.
    Mr. Mayorkas. As I hear that statute, as you read it, 
Senator, that is an evidentiary provision that speaks to a 
prima facie case that may indeed, if I understand it correctly, 
shift the burden to rebut. Whether or not the Shahzad case 
triggers Section 1424 or not is a question I cannot answer.
    Senator Feinstein. Well, look, I am not asking you to get 
into the Shahzad case, but it seems to me any naturalized 
citizen who within 5 years of naturalization commits a 
terrorist crime, associates with terrorists, engages in bomb 
making, clearly with the intent to do great harm to the people 
of this country, and pleads guilty to it, is covered by this 
section. If you do not want to say anything, you do not have 
to, but, I mean, it is clear on its face, at least to me.
    Mr. Mayorkas. It would seem so to me as well, Senator.
    Senator Feinstein. OK. Thank you.
    I am particularly concerned about fraudulent immigration 
specialists, so-called, who misrepresent themselves as 
attorneys to defraud individuals who seek immigration 
assistance. Last year, I introduced a bill, the Immigration 
Fraud Prevention Act, which would penalize and prevent this 
kind of immigration fraud. Given the enormous amount of 
applications that come across your section each day, how does 
USCIS detect when a phony immigration specialist files an 
application?
    Mr. Mayorkas. Senator, thank you very much for your 
question and also for your work with respect to that Act. As an 
agency, we are actually going to be launching an initiative to 
address the unauthorized practice of law and notario fraud and 
other efforts to prey upon the vulnerable immigration 
population. That is going to consist of a robust communication 
with the immigrant advocacy community and the immigrants that 
they serve to raise awareness of the unauthorized practice of 
law and notario fraud, to discuss with the advocacy community 
and other stakeholders an accreditation service and what we as 
an agency can do as a conduit between the immigrants we serve 
and the Government to stamp out this. This is a real problem--
we recognize it, and we are developing an initiative to address 
it.
    Senator Feinstein. Thank you. Please be vigorous in that 
regard. I have a serious problem with people that take 
advantage of very vulnerable people. To me, there is no excuse 
for this. So I would welcome your most vigorous approach.
    Mr. Mayorkas. And we will employ it, and I will say, 
Senator, that when I was United States Attorney, we had a very 
significant investigation and prosecution of notario fraud that 
was the largest of its kind in the Nation.
    Senator Feinstein. I wanted to ask just quickly one--my 
time has expired. Do you mind if I ask one more question?
    Senator Franken. [Presiding.] Not at all. It is just the 
two of us, and I am the Chair, and as far as I am concerned, 
you can ask whatever you want.
    [Laughter.]
    Senator Feinstein. Excellent. All right. That is just fine.
    I wanted to talk to you about a paragraph in your written 
statement which is on page 7, and you mention that you are 
working hard to improve E-Verify's ability to detect identity 
fraud. And you in this paragraph more or less make the judgment 
that a photograph offers a biometric comparison. I really do 
not agree with that. I think only real biometrics offer full 
fraud prevention. I am sure you have been to Alvarado Street in 
Los Angeles, as have I. You know the quality of documents, 
fraudulently, that can be produced inside 20 minutes or 30 
minutes and how easy it is. And it seems to me the picture is 
very easy to falsify.
    I happen to believe that people have a responsibility to be 
who they really are, not to pretend they are somebody else, 
particularly when they are in this very permissive and yet 
fragile state of a work visa in this country. I think the 
Government and the people who hire them are really entitled to 
know that, in fact, they are who they say they are. Therefore, 
it seems to me that a place to really start with true 
biometrics is in the green card. It also seems to me that if we 
are going to do a comprehensive immigration bill--and I very 
much hope we are--one of the criteria is going to have to be 
positive identification.
    Mr. Mayorkas. Senator, I think that my written testimony to 
which you refer speaks of the use of photographs as an 
improvement. While photographs are not as assuredly accurate as 
fingerprints, they are an improvement over the lack of 
photographs. And I should say with respect to the legal 
permanent resident card, commonly known as the green card, we 
are unveiling this week for the first time in quite a number of 
years a more secure green card that has state-of-the-art 
security features so that it is more difficult to counterfeit 
and we can more easily detect identity fraud. So we are making 
strides.
    Senator Feinstein. Are you prepared to say to me it cannot 
be counterfeited on Alvarado Street? I would not do that if I 
were you.
    Mr. Mayorkas. With that admonition, I will----
    [Laughter.]
    Mr. Mayorkas. I will say that----
    Senator Franken. That sounded like a threat.
    Mr. Mayorkas. Based on my experience, with that street 
being within the jurisdiction of the Central District of 
California, as I dealt with the counterfeiting of permanent 
resident cards as an Assistant United States Attorney and as 
the United States Attorney, I think this card would be very 
difficult to counterfeit.
    Senator Feinstein. Oh, you do?
    Mr. Mayorkas. Yes.
    Senator Feinstein. All right.
    Mr. Mayorkas. I did not say impossible, but I do think it 
is much more difficult, and I query whether the one-stop shops 
on a street corner that used to counterfeit the green cards 
have the level of sophistication to counterfeit this card.
    Senator Feinstein. May we see one of those cards when you 
have them ready for distribution?
    Mr. Mayorkas. Most certainly.
    Senator Feinstein. Thank you very much.
    Thanks, Senator. I appreciate it. Thank you.
    Mr. Mayorkas. Thank you, Senator.
    Senator Franken. Thank you, Mr. Director.
    A couple weeks ago, Senators Reid, Durbin, Feinstein, 
Menendez, and Schumer released a conceptual proposal for 
comprehensive immigration reform as an invitation to our 
colleagues on the other side of the aisle to come negotiate and 
act bipartisan legislation. One criticism, however, that is 
repeatedly made about enacting immigration reform legislation 
is that USCIS does not have the resources at this time to 
effectively process immigration reform legislation because it 
typically receives 4 to 6 million applications for benefits 
each year and will be receiving millions more applications when 
the legislation is enacted.
    My question is: Is your agency prepared to handle 
comprehensive immigration reform? Can you share with the 
American people your plan for how you would process these 
applications in an efficient and effective manner and the work 
that has gone into developing your plan? It is a big question, 
I know, but we might as well end with it.
    Mr. Mayorkas. Thank you very much, Senator. I welcome the 
question.
    Let me say that our agency will be prepared to implement 
comprehensive immigration reform when the legislation passes. 
We will require funding to implement a plan, should the plan 
include a path to legalization for the approximately more than 
10 million people in this country, according to studies. What 
we have done, Senator, each and every day is to review our 
processes and develop greater efficiencies. These efficiencies 
will serve us in the implementation of any reform legislation 
that is passed. And I think the best example of that is with 
respect to the unanticipated volume of applicants for Temporary 
Protected Status following the January 12th earthquake in 
Haiti.
    Because of the operational improvements that we made and 
the nimbleness that we developed in trying to always improve 
our system, we were able to take on that unanticipated volume 
of applications. We have addressed the applications with 
tremendous dispatch. Our security mechanisms are as robust as 
they ever were with respect to that population as they are with 
all of the populations that come before us.
    So I say with confidence that we as an agency will be ready 
to implement comprehensive immigration reform legislation. We 
will need the opportunity of funding and time to implement it.
    Senator Franken. Well, thank you very much for all your 
testimony today, Director Mayorkas.
    The record will be kept open for a week. This hearing is 
adjourned.
    Mr. Mayorkas. Thank you, Senator.
    [Whereupon, at 11:09 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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