[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]







  SAFEGUARDING THE INTEGRITY OF THE IMMIGRATION BENEFITS ADJUDICATION 
                                PROCESS

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   IMMIGRATION POLICY AND ENFORCEMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 15, 2012

                               __________

                           Serial No. 112-94

                               __________

         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

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

           Subcommittee on Immigration Policy and Enforcement

                  ELTON GALLEGLY, California, Chairman

                    STEVE KING, Iowa, Vice-Chairman

DANIEL E. LUNGREN, California        ZOE LOFGREN, California
LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
TED POE, Texas                       MAXINE WATERS, California
TREY GOWDY, South Carolina           PEDRO R. PIERLUISI, Puerto Rico
DENNIS ROSS, Florida

                     George Fishman, Chief Counsel

                   David Shahoulian, Minority Counsel


















                            C O N T E N T S

                              ----------                              

                           FEBRUARY 15, 2012

                                                                   Page

                           OPENING STATEMENTS

The Honorable Elton Gallegly, a Representative in Congress from 
  the State of California, and Chairman, Subcommittee on 
  Immigration Policy and Enforcement.............................     1
The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Ranking Member, Subcommittee on 
  Immigration Policy and Enforcement.............................     3
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     5

                               WITNESSES

Honorable Alejandro Mayorkas, Director, U.S. Citizenship and 
  Immigration Services
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Honorable Charles K. Edwards, Acting Inspector General, U.S. 
  Department of Homeland Security
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20
Mark Whetstone, President, National Citizenship and Immigration 
  Services Council
  Oral Testimony.................................................    57
  Prepared Statement.............................................    59
Bo Cooper, Partner, Berry Appleman and Leiden, LLP
  Oral Testimony.................................................    61
  Prepared Statement.............................................    64

 
  SAFEGUARDING THE INTEGRITY OF THE IMMIGRATION BENEFITS ADJUDICATION 
                                PROCESS

                              ----------                              


                      WEDNESDAY, FEBRUARY 15, 2012

              House of Representatives,    
                    Subcommittee on Immigration    
                            Policy and Enforcement,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 2:40 p.m., in 
room 2141, Rayburn Office Building, the Honorable Elton 
Gallegly (Chairman of the Subcommittee) presiding.
    Present: Representatives Gallegly, Smith, Lofgren, Gowdy, 
Waters, Gohmert, Jackson Lee, and King.
    Staff present: (Majority) Andrea Loving, Counsel; Marian 
White, Clerk; and (Minority) David Shahoulian, Subcommittee 
Chief Counsel.
    Mr. Gallegly. I call the Subcommittee to order.
    I welcome all of you here today. Congress designs our 
immigration policy to benefit the American people. When 
immigrants receive visas or citizenship that they are not 
entitled to, Americans are worse off whether it is workers, 
taxpayers or simply citizens. If there is a credible allegation 
that this is occurring, we have a duty to determine the truth.
    Such allegations were made by a January 2012 Department of 
Homeland Security Office of Inspector General report. The 
report was entitled ``The Effects of USCIS Adjudication 
Procedures and Policies on Fraud Detection by Immigration 
Service Officers.''
    The inspector general found that U.S. Citizenship and 
Immigration Services adjudicators are not receiving adequate 
training to uncover fraud and immigration benefit applications. 
The IG found that USCIS performance measures favor quantity 
over quality. This encourages the rubberstamping of 
applications.
    The IG found that the adjudicators feel inappropriately 
pressured by supervisors and USCIS leadership to approve 
petitions that don't meet the standards for approval. USCIS 
leadership seems to favor ``get to yes'' instead of ``get it 
right.''
    Is it important that the adjudicators make their decision 
in a timely manner? Yes. But it is also important that they 
have adequate time and support to ensure that the individuals 
who receive immigration benefits, such as a temporary visa, 
permanent residency or citizenship are in fact eligible for 
those benefits.
    Immigration benefit denial rates obtained from USCIS show a 
rise in denials in severalcertain categories between the years 
of 2008 and 2010. Some will argue that this shows that there is 
no improper pressure on adjudicators. However, this rise in 
denials may simply be a result of adjudicators following the 
law, and the increased pressure by USCIS leadership to approve 
applications may be an attempt to reverse this recent trend.
    I know that many in this business community are concerned 
that their petitions for alien workers are being denied and 
they are being required to answer excessive requests for 
additional evidence, known as RFEs.
    But why did denial and RFE rates go up? It very well could 
be because of statutory changes that were implemented and major 
decisions that were issued.
    For instance, the changes made by the L-1 Visa Reform Act 
of 2004 to prevent contracting-out of alien workers were not 
implemented by the agency wide level until 2008. As one would 
expect, there was a corresponding rise in USCIS denial rates in 
fiscal year 2008.
    And the 2010 ``Neufeld Memo'' on H-1B visas issued by the 
USCIS Associate Director for Service Center Operations provided 
new guidance on what should be considered by employer-employee 
relationship between the petitioning company and the 
beneficiary. After that, the Government Accounting Office noted 
companies' petitions were no longer being approved at previous 
rates.
    And the GST decision was issued by the USCIS Administrative 
Appeals Office in July 2008. It provided a new framework for 
adjudicators when determining whether or not a petition meets 
certain L-1B visa requirements.
    Both those who support and oppose this AAO ruling can agree 
that it has had the natural result of increasing subsequent 
denial rates in the L-1B category.
    But whatever may be the cause of the denial rates in a 
particular visa category for a particular year, USCIS' own data 
shows that the overall denial rate for nonimmigrant worker 
visas has fallen over 30 percent since President Obama took 
office in 2009, and that the approval rate for all kinds of 
immigrant benefits is at an all-time high of 91 percent.
    There is never a legitimate reason to pressure adjudicators 
to deny petitions where the beneficiary is eligible for the 
benefit and there is never a legitimate reason to pressure 
adjudicators to approve petitions that do not meet the 
statutory requirements.
    But according to the inspector general, some USCIS 
adjudicators feel such pressure. That is why we are here today. 
We will receive testimony from the DHS inspector general, who 
will explain his January 2012 report findings.
    We will receive testimony from the president of the 
National Citizen and Immigration Services Council, which 
represents USCIS adjudicators.
    He will discuss how performance standards that emphasize 
quantity over quality imperil the integrity of the 
adjudicators' process and we will hear from the USCIS director, 
Director Ali Mayorkas, who will help us determine whether or 
not there is a ``get to yes'' mentality at the USCIS.
    And with that, I would yield to my good friend, the Ranking 
Member, from my home state, California, the gentlelady, Ms. 
Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman.
    There is an old parable about blind men and an elephant. 
One blind man feels the elephant's leg, thinks it is a column. 
Another feels its tail, thinks it is a rope. Another feels the 
trunk and says it is a tree branch. Having felt only one part 
of the elephant, each blind man is in total disagreement with 
the other about what they are touching.
    And in some ways, although I have great respect for the 
inspector general and the mission of the IG to prevent and 
detect waste, fraud and abuse in government operations, that is 
kind of what we ended up with in this report.
    The IG system is really important. I am a big fan of the IG 
system. It is essential to get facts for Members of Congress so 
we can be guided in our policy making for an effective and 
efficient government.
    But a report that reminds me of the blind men with the 
elephant is not what we need and I am afraid it is what we got 
in this case.
    When I first received the OIG report, I did what I always 
do. I turned to the methodology page because a report is 
meaningless if its methodology is not sound. Are its surveys 
fairly worded and statistically valid? Does it include 
objective analysis of hard data? On these questions, I believe 
the report comes up short. The report does not review available 
statistical data. The OIG did not, apparently, seek input from 
outside stakeholders. It does not look like they talked to 
other government components, critical to an understanding of 
USCIS, such as the Ombudsman's Office.
    Instead, the report is based almost entirely on 147 
interviews and 256 self-selected responses to an online survey, 
representing just over 2 percent of the 18,000 people who work 
at the USCIS.
    In general, reports can be useful if the questions are 
useful. But the responses have to be not self-selected for 
bias, and what we have here, I am afraid, is a self-selected 
group of people who have a complaint. Their complaints may be 
valid but they are certainly not representative.
    For example, the report finds that there may be undue 
pressure on adjudicators based on the responses for the 
following question. Here is the question in the report: Have 
you personally ever been asked by management or a supervisor to 
ignore established policy or pressured to approve applications 
that should have been denied based on fraud or ineligibility 
concerns?
    Importantly, 75 percent of those who chose to respond said 
no but 63 individuals said yes. That is out of 18,000 people 
who work for the USCIS. But that doesn't tell us very much 
about this response.
    We don't know when they felt this pressure. Was it 6 months 
ago? Was it during the Reagan administration? We have no idea, 
from this report. And we don't know whether it happened once or 
whether it was repeatedly, and we don't know what the pressure 
actually was.
    Was it a simple request to have the adjudicator look again 
at the facts of the case or something improper? There is no way 
to tell from the report.
    Yet, based on this slim reed, the report paints a picture 
of an agency in which almost every facet is tilted toward the 
approval of applications and petitions. Based on the interviews 
and survey responses, the report endorses the proposition that 
USCIS suffers from a culture of ``getting to yes.''
    Now, this would be concerning if it weren't so surprising 
because for the last several years I have repeatedly heard from 
interest groups, constituencies, the Chamber of Commerce, the 
business community, that the agency is actually suffering from 
the reverse problem, that they are saying no to cases that 
should be approved.
    American businesses in my district and elsewhere say that 
the agency has become more stringent, that the increase in 
denials and delays are unreasonable, that petitions that used 
to be approved quickly are now denied or slowed by lengthy 
requests for evidence. And they have shared some cases 
indicating that adjudicators may have altered long established 
requirements or tightened standards without notice to 
stakeholders or the Congress.
    They share examples of requests for evidence that really 
boggle the mind, such as asking, and I saw this, a well-
established Fortune 500 company that employs thousands of 
people to provide leases and floor plans and fire escape routes 
to prove that they actually exist.
    When I first saw the report I asked my staff to request and 
review data for all the adjudications in the last decade, and I 
understand that upon receiving the report the majority made the 
same request.
    This data which, unbelievably, was not analyzed by the OIG, 
shows a sizeable increase in denial rates for key business visa 
categories and appears to support what I have been hearing from 
businesses for the last several years. In some categories, the 
denial and RFE rates have increased by 300 to 500 percent 
during the Obama administration.
    Now, I can't tell and I am not claiming whether--what the 
right approval rate should be. You know, maybe it is too low 
now. Maybe it is too high now. You can't tell from the report 
whether this is higher quality or adheres to law or whether it 
is more mistakes and, certainly, the OIG report gives us no 
guidance on that.
    I would take issue with some of the report's 
recommendations as well. To end an informal appeals process and 
``special review of denied cases'' is such a mistake. I can't 
believe the OIG would have made this recommendation if they had 
engaged with stakeholders and reviewed some of the actual 
cases, and let me just give you a couple of examples.
    I mean, perhaps with one or two exceptions, virtually every 
Member of Congress has contacted the USCIS to ask for a review 
of cases that were erroneously denied and, certainly, I am 
among them.
    For example, I had a recent case in which the USCIS denied 
an employment-based petition because the adjudicator determined 
that the company only had $15,000 in annual revenue and 
therefore couldn't possibly pay the worker.
    It turned out, however, that the adjudicator had failed to 
note that the figures were listed in thousands. It was actually 
$15 million in revenue. So the OIG's recommendation for a 
formal appeal process would have required a 2-year process just 
to point out that the person in the bureaucracy misread the 
file. Truly, that couldn't be a wise response.
    I had another case where an H-1B worker with an approved 
employment-based green card petition had his application for 
adjustment denied because he did not provide evidence 
establishing eligibility for the Cuban Adjustment Act.
    Well, the applicant wasn't Cuban and he wasn't applying 
under the Cuban Adjustment Act. He was applying under a 
different provision of the law. Under the proposal, this 
individual with an approved petition would have had to go back 
to his country in Europe for 2 years because the USCIS employee 
screwed up. How could that be a reasonable response to somebody 
making a mistake in the bureaucracy?
    I think, finally, in light of the Committee Chairman's op-
ed in the Politico today entitled, ``Obama's Lax Visa Policy 
Imperils U.S.'', I do believe one part of this report needs to 
be emphasized and here is a direct quote from the report: No 
ISOs--that is immigration service officers--presented us with 
cases where benefits were granted to those who pose terrorist 
or national security threats to the United States. Even those 
employees who criticize management express confidence that 
USCIS would never compromise national security on a given case.
    I yield back, Mr. Chairman.
    Mr. Gallegly. The gentleman from Texas, the Chairman of the 
full Committee, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    The vast majority of those who apply for immigration 
benefits have no ill intent toward the U.S. They come here for 
legitimate work or travel. But American immigration benefits, 
whether they are in the form of H-1B visas, permanent residence 
for relatives of U.S. citizens, employment authorization 
documents or naturalization are of great value around the 
world.
    For that reason, there are foreign nationals who will do 
and say whatever they think will get their benefits approved--
forge documents, get bogus employers to sponsor them, and even 
deny their terrorist ties. So we must have policies in place 
that help ensure we will not admit those who intend to cause us 
harm or make a mockery of our immigration system. We need 
immigration policy designed to protect American workers and 
taxpayers.
    Officers at U.S. Citizenship and Immigration Services are 
the first line of defense against those trying to come into the 
United States by fraudulent means.
    In 2002, the then General Accounting Office found that 
immigration benefit fraud was ``pervasive,'' ``on the 
increase'' and ``rampant'' at the Immigration and 
Naturalization Service.
    And in 2006, the now Government Accountability Office again 
found that, ``although the full extent of benefit fraud is not 
known, available evidence suggests that it is an ongoing and 
serious problem.''
    GAO reported that the immigration officers interviewed felt 
management didn't emphasize fraud control, but instead focused 
on ``production goals designed to reduce the backlog of 
applications almost exclusively.''
    Also in 2006, the Department of Homeland Security Office of 
Inspector General reported on a lack of incentives for USCIS 
personnel to combat fraud, as opposed to simply rubberstamping 
applications to get gold stars for improved productivity.
    The allegations of rubberstamping continued and 
whistleblowers began providing details to congressional 
investigators.
    In October 2010, Senator Chuck Grassley asked the DHS 
Inspector General to again look into whether, ``senior U.S. 
Citizenship and Immigration Service leaders are putting 
pressure on employees to approve more visa applications even if 
the applications might be fraudulent or the applicant is 
ineligible.''
    Last month, the Inspector General released a report 
detailing findings based on Senator Grassley's request.
    Specifically, the IG reported that the mindset of quantity 
over quality has not ended at USCIS.
    In fact, according to the report, nearly 25 percent of 
immigration service officers that responded to the IG survey 
``have been pressured to approve questionable applications.''
    This mindset is called ``get to yes'' regardless of the 
consequences. Where does it come from, rogue supervisors or 
from the very top of USCIS?
    Such pressure undermines the rule of law, the integrity of 
U.S. immigration policy and national security. This rubberstamp 
process leaves an ink trail of fraud and abuse.
    For instance, in 2005, the Office of Fraud Detection and 
National Security, FDNS at USCIS, reported a 33 percent fraud 
rate in the religious worker visa program. Following that 
disturbing find, in 2008, USCIS issued a rule designed to 
strengthen the requirements for religious worker visa 
processing. The rule included a site visit requirement and last 
December FDNS issued a follow-up report noting a fraud rate of 
less than 6 percent in the program.
    And in 2008, FDNS found a 21 percent fraud rate in H-1B 
cases.* The FDNS report triggered site visits to H-1B employers 
which resulted in nearly 1,200 adverse actions by USCIS and the 
prosecution of 27 people.
---------------------------------------------------------------------------
    *The rate includes fraud and technical violations.
---------------------------------------------------------------------------
    As long as FDNS is allowed to operate in an unhindered 
fashion it is an asset to USCIS and to all Americans. USCIS 
processes more than 6 million immigration benefits applications 
or petitions each year. That is no small job.
    And security should be the number-one priority in that 
process. At the same time, legitimate petitions should be 
approved in a timely manner.
    I look forward to the witnesses' testimony so we can be 
assured that security is in fact the top priority at USCIS.
    Thank you, Mr. Chairman. I want to say also that I am going 
to need to go to another Committee hearing momentarily but I 
will return, I hope, in a few minutes for questions.
    Thank you. I yield back.
    Mr. Gallegly. I thank the gentleman.
    We have a very distinguished panel of witnesses on our 
first panel today and I would just ask that you help us all by 
trying to keep your opening statement limited to the 5 minutes. 
But your statements will be made a part of our record of the 
hearing in its entirety.
    And so with that, let me introduce our two distinguished 
witnesses. First is Director Alejandro Mayorkas. Director 
Mayorkas has served as the director of the U.S. Citizenship and 
Immigration Services since 2009.
    Prior to his appointment, Director Mayorkas was a partner 
in the law firm of O'Melveny and Myers and before he served as 
the U.S. Attorney for the Central District of California. 
Director Mayorkas is a graduate of the University of California 
at Berkeley and holds a J.D. from Loyola Law School.
    Our second witness is Mr. Charles Edwards. Mr. Edwards is 
Acting Inspector General of the U.S. Department of Homeland 
Security. Prior to this position, Mr. Edwards served as a 
deputy general of the Department of Homeland Security and held 
leadership positions at several Federal agencies.
    Mr. Edwards is a graduate of Loyola College in Maryland and 
has a double Master's degree in electrical engineering and 
computer engineering.
    So with that, we will open the hearing to Director 
Mayorkas. Welcome.

 TESTIMONY OF THE HONORABLE ALEJANDRO MAYORKAS, DIRECTOR, U.S. 
              CITIZENSHIP AND IMMIGRATION SERVICES

    Mr. Mayorkas. Thank you, Chairman.
    Chairman Gallegly, Ranking Member Lofgren, Members of the 
Subcommittee, thank you for the opportunity to testify before 
you about the efforts of U.S. Citizenship and Immigration 
Services to protect the integrity of our Nation's immigration 
system and to help safeguard our Nation's security.
    I appreciate the Committee's interest in learning about our 
continued prioritization of the agency's efforts, which are 
unprecedented in their scope and effect.
    I want to take this opportunity to thank the men and women 
of USCIS whose dedication to the agency's mission is unwavering 
and whose hard work makes our vital mission a reality. 
Together, as an agency, we are committed to administering our 
Nation's immigration laws efficiently and with fairness, 
honesty and integrity.
    I also want to thank the U.S. Department of Homeland 
Security's Office of Inspector General for its role in 
reviewing our efforts. The OIG's independent review of our 
agency's operations assists us in our pursuit to improve each 
and every day including in the priority areas of combating 
fraud and strengthening national security.
    I came to this country as a refugee, escaping the communist 
takeover of Cuba. My father and mother instilled in me a 
profound and abiding appreciation of and respect for the rights 
and responsibilities that define my United States citizenship 
and the rule of law that is its foundation.
    It was the values my parents instilled in me that led me to 
become an Assistant United States Attorney specializing in the 
investigation and prosecution of criminal fraud. For my nearly 
12 years as a Federal prosecutor, culminating in my service as 
a United States Attorney for the Central District of 
California, I learned what it means to enforce the law and to 
do so in furtherance of our national security and public 
safety.
    Historically, our agency has been challenged by a culture 
that focused primarily upon making adjudication decisions 
quickly, resulting in a significant and ongoing tension between 
the quality of our adjudications and the speed with which they 
are made.
    This tension in an agency that processes approximately 7 
million applications and petitions annually has existed for 
many years.
    When I came to the agency in August 2009, its first of ten 
top priorities was to achieve production goals. Early in my 
tenure, I determined there was an opportunity for 
organizational changes to both the culture and structure of the 
agency in several areas, including our anti-fraud and national 
security programs.
    I also determined that we must enhance the emphasis on 
quality in our adjudicative approach. This means that 
immigration benefit decisions are informed, adhere to the law 
and the facts, are made in a timely manner, and further the 
integrity and goals of the immigration system.
    Within 5 months of my arrival at USCIS, I realigned our 
agency's organizational structure. I created the Fraud 
Detection and National Security directorate, an elevation and 
expansion from its previous status as an office within a 
directorate. The resulting prioritization of these core 
responsibilities has enabled us to achieve unprecedented 
results. I also created an Office of Performance and Quality to 
ensure that our agency prioritizes quality throughout its 
adjudicative practices and mission support processes.
    As the leader of an agency that administers the immigration 
laws of the United States, as a former Federal prosecutor who 
has devoted the greatest part of his career to law enforcement, 
and as a refugee whose blessing of becoming a United States 
citizen depended on the integrity of our system, it is of 
paramount importance to me that no USCIS employee--whether 
because of any perceived pressure to process an immigration 
benefit quickly or for any other reason--ever adjudicates a 
case other than in accordance with what the law and the facts 
warrant.
    This is an ethic I have articulated and reinforced since I 
first became the Director of USCIS.
    Mr. Chairman, Ranking Member Lofgren and Members of the 
Subcommittee, thank you again for the opportunity to share with 
you the great work we in U.S. Citizenship and Immigration 
Services have done and continue to do to safeguard our national 
security and combat fraud.
    This work allows us to remain the welcoming Nation of 
immigrants we are so proud to be.
    And finally, I want to again express my deep thanks and 
appreciation to the men and women of USCIS who dedicate each 
and every day to our noble mission and whose hard work and 
commitment to our principles have made our achievements 
possible.
    Thank you.
    [The prepared statement of Mr. Mayorkas follows:]
    
    
    

                               __________
    Mr. Gallegly. Thank you, Director Mayorkas.
    Our next witness, Mr. Edwards.

TESTIMONY OF THE HONORABLE CHARLES K. EDWARDS, ACTING INSPECTOR 
         GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Edwards. Good afternoon, Chairman Smith, Chairman 
Gallegly, Ranking Member Lofgren and Members of the Committee.
    I am Charles Edwards, Acting Inspector General for the 
Department of Homeland Security. Thank you for inviting me here 
today to discuss our report, ``The Effects of USCIS 
Adjudication Procedures and Policies on Fraud Detection by 
Immigration Services Officers.''
    This inspection effort was designed to respond to questions 
from Senator Grassley after he received whistleblower 
complaints from USCIS service center employees. Our conclusions 
are based on interviews and survey responses as well as review 
of hundreds of email messages, reports, appeal decisions and 
media stories.
    We received input from more than 400 USCIS employees, 
including Director Mayorkas, and we thank them for their 
perspective and their collaboration.
    Our inspection reviewed ways to improve fraud detection in 
the immigration benefit caseload.
    In our report, we determined that important steps have been 
taken to promote the integrity of the immigration benefit 
system. Nonetheless, additional work is necessary to maximize 
efficiency and mission performance.
    It is important to note that several of the problems we 
identified have been documented for over a decade. Production 
pressure in the immigration benefit caseload has existed for a 
long time. Data shows that some benefit denial rates have 
increased in recent years.
    Nonetheless, even a benefit that has a relatively high 
denial rate may still be subject to production pressure.
    Our report included 11 recommendations for USCIS and a 
discussion about the standard of proof in immigration benefit 
determinations. My statement for the record includes further 
details about all sections of our report.
    Our first three recommendations relate to the interaction 
between Immigration Service Officers, or ISOs, who process 
benefit requests, and fraud detection Immigration Officers, or 
IOs. Our report recommended that USCIS promote more 
collaboration between ISOs and IOs. USCIS concurred with these 
recommendations.
    Our fourth recommendation pertains to the identification of 
aliases. Individual aliases or multiple spellings of names 
complicate the security check process. Because files can be 
large, ISOs can miss aliases during the review of a case file.
    We recommended additional quality assurance review to 
decrease the risks involved in unidentified aliases and USCIS 
concurred.
    Recommendations five and six discuss further ways to 
improve ISO performance evaluations.
    The recently revised ISO performance measures prioritize 
quality and national security as critical elements. We 
recommended that USCIS perform on-site outreach efforts to 
support the new performance criteria and to solicit comments 
from field staff about the new measures. USCIS concurred.
    In the remaining parts of the report we discussed some 
other pressures ISOs have perceived to approve cases despite 
doubts they have about a person's eligibility. We recommended 
that ISOs be given additional time for case processing, and 
although USCIS did not concur the issue will be studied 
further.
    Several USCIS employees informed us that ISOs have been 
required to approve specific cases against their judgment. Any 
such instruction by a supervisor would be contrary to USCIS 
policy. When it occurs that a higher ranking and probably more 
experienced supervisor believes the case approvable, the 
supervisor is supposed to sign the decision. An ISO should 
never sign something when he or she disagrees with the 
decision, even at the request of a higher-ranking officer.
    Some ISOs may not be aware of this policy and USCIS 
concurred with our recommendation that it be enforced. We also 
recommended that USCIS make improvements to policy on Requests 
for Evidence, or RFEs, which are sent if an ISO needs 
additional information to make a decision.
    The USCIS adjudications manual is unclear, stating both 
that RFEs should if possible be avoided and that ISOs should 
request evidence needed for thorough correct decision making. 
USCIS concurred with our recommendation to clarify RFE policy.
    USCIS did not concur with the final two recommendations in 
our report, which suggested new policies to define more clearly 
the procedure to be followed if USCIS managers and attorneys 
seek to affect the adjudications process.
    Mr. Chairman, this concludes my prepared remarks and I will 
be happy to answer any questions that you or the Members may 
have.
    Thank you.
    [The prepared statement of Mr. Edwards follows:]
    
    
    
                               __________

    Mr. Gallegly. Thank you very much, Mr. Edwards.
    Director Mayorkas, it is my understanding that a few years 
ago the Office of Fraud Detection and National Security issued 
a draft report detailing the amount of fraud in the L visa 
program. In fact, my staff has been provided with parts of that 
draft report which seemed to show many specific cases of L visa 
fraud.
    My staff has also been told that you and other officials at 
USCIS put pressure on employees to downplay that fraud and 
there was belief that if this report were released on the heels 
of the H-1B fraud assessment, which showed a 21 percent fraud 
rate in that program, it would be a blow to the push for 
comprehensive immigration reform.
    Even the former head of FDNS indicated that fraud was in 
double digits, high enough that there should be concern that 
the agency and department should want to correct it.
    Director Mayorkas, can you tell us when you plan to release 
the final report?
    Mr. Mayorkas. Thank you very much, Chairman, for giving me 
an opportunity to address your concerns.
    Any suggestion that I downplayed fraud or have ever 
downplayed fraud is categorically false and is belied by my 
record since the first day that I started as the Director of 
U.S. Citizenship and Immigration Services.
    As I alluded to briefly, when I came into the office I 
conducted a top-to-bottom review of the agency and within 5 
months created the Fraud Detection and National Security 
directorate, elevated its priority within the agency and have 
embarked upon and executed a series of initiatives that have 
demonstrated my prioritization of that critical mission set.
    I think that the record speaks for itself. To provide some 
measure of the effectiveness of our anti-fraud efforts, in 
fiscal year 2011 adjudicators referred over 16,000 suspected 
fraud cases to the Fraud Detection and National Security 
directorate and in turn FDNS, as it is known, completed 
administrative fraud investigations on 8,739 cases, finding 
fraud in over 6,000 of those cases, approximately 70 percent. 
That is a 34 percent increase over the number of investigations 
completed in fiscal year 2010.
    Mr. Gallegly. Pardon me, Director Mayorkas. I understand 
how proud you are of your record and I totally respect that.
    But with all due respect to the time, that doesn't address 
the question I asked and the question I asked simply is when do 
you plan to release the final report?
    Mr. Mayorkas. One of the initiatives that we embarked upon, 
Chairman Gallegly, is to improve the benefit fraud and 
compliance assessment report process and so what we have done 
is we have brought expertise to bear to ensure that those 
reports are prepared in a statistically sound fashion and are 
well grounded in fact and study so that we can most effectively 
direct our operations accordingly.
    What I have instructed our workforce in the interim is to 
use the report that it does have, to use the evidence that they 
do have currently in their possession, and make the operational 
decisions that they need to.
    So we are addressing the fraud currently based on the data 
that we have and we are improving the report process, including 
its preparation.
    Mr. Gallegly. So you do have a draft report that you are 
using as a basis to proceed ahead. What I would ask then, 
Director, is can you please provide me by the end of the work 
day today a copy of that draft benefit fraud and compliance 
assessment?
    Mr. Mayorkas. Thank you, Mr. Chairman.
    Mr. Gallegly. Can you do that?
    Mr. Mayorkas. I certainly can, and whether it is at the end 
of the day or forthwith we certainly will.
    Mr. Gallegly. As long as we have forthwith I would say by 
noon tomorrow, okay?
    Mr. Mayorkas. Very well, Chairman.**
---------------------------------------------------------------------------
    **The information requested was received by the Subcommittee but is 
not being included in the printed hearing record.
---------------------------------------------------------------------------
    Mr. Gallegly. Thank you very much.
    Inspector General Edwards, there has been criticism of the 
section of your report stating that nearly 25 percent of the 
immigration service officers who responded to your online 
survey said they felt pressure to approve questionable 
applications.
    Specifically, the criticism suggests that since these ISOs 
were at USCIS field offices, which do not adjudicate 
employment-based petitions, so this pressure is not apparent in 
the service centers where the employment-based visas are 
adjudicated.
    I know in addition to the online survey your investigators 
also conducted 147 interviews, many of which were adjudicators 
at the service centers. Did your investigators hear the same 
kinds of concerns about the pressure to approve questionable 
applications during interviews they conducted with service 
center personnel?
    Mr. Edwards. Thank you, Chairman.
    Yes, we heard the same concerns during our interviews of 
the service center personnel.
    Mr. Gallegly. So it is consistent.
    Mr. Edwards. Yes, sir.
    Mr. Gallegly. Very good. Thank you. I see my time has 
expired.
    The gentlelady, the Ranking Member, Ms. Lofgren.
    Ms. Lofgren. Before I ask my questions, I would like to ask 
unanimous consent to include in the record a letter from the 
American Immigration Lawyers Association and also a letter from 
the U.S. Chamber of Commerce.
    Mr. Gallegly. Without objection.
    [The information referred to follows:]
    
    
    

                               __________
    Ms. Lofgren. I would just note in the letter from the 
Chamber of Commerce is this statement: All regulatory 
economists that reviewed the report--this is for the U.S. 
Chamber of Commerce--has concluded that the survey methodology 
should draw into question any reliance on the conclusions in 
the report, and that is a concern that I have.
    Now, having said that, and this is with all due respect, 
Mr. Edwards, and it is not personal to you but I was astounded 
at the amateurishness of this report, and I expect better and I 
am hoping that maybe we can sit down and talk about the need 
for statistical analysis for future reports. And I may have 
some direct questions for you that I will go into off calendar.
    But, certainly, we don't want fraud, I mean, and I remember 
being in this chamber a number of years ago in the 90's and 
pointing out concern about H-1B approvals, and one Sunday 
morning I took the addresses listed in the top 20 and they were 
all in Silicon Valley and I drove around.
    They were post office boxes and I remember saying, you 
know, if a middle-aged Congresswoman can find out that the 
employer is a post office box there was a problem. This was way 
before you were here, Mr. Mayorkas. It was in the 90's. And so, 
certainly, there is room to improve and you have made 
tremendous improvements.
    I would just note that in terms of just the statistics, if 
you take a look at the H-1B denial rates and who knows whether 
this is the post office boxes I saw back then but, for example, 
in the year 2004 the denial rate was 11 percent on H-1Bs. In 
the year 2011, it is 17. When you take a look at the request 
for evidence rates in 2004 it was 4 percent. In 2011, it was 26 
percent. I mean, that is a big jump.
    In the L-1B request for evidence rates, it was 2 percent in 
2004, 63 percent in 2011. So you are really ramping up the 
evidentiary standards in the inquiry and, certainly, we don't 
want fraud but there is a price to pay as well if it is a 
legitimate effort and it is delayed unduly. And I want to just 
raise a couple of questions. For example--and this is an actual 
case, I won't mention the country or the name of the individual 
out of respect for the process--but it is a former head of 
state of a Western European nation whose name is a household 
name, who was applying to come give a speech and was asked to 
list his employment dates and his employer. It is like, give me 
a break.
    I mean, how could that be a reasonable use of our time and 
effort? And I am wondering--well, for example, a case where the 
U.S. Chamber has cited where a company wanted to open a 
fulfillment center in the United States and there were visa 
petitions to bring in a handful of foreign staff to train 
American staff for the new center, and they couldn't get the 
visas approved and so the company went to Canada instead.
    Or an issue raised by the immigration lawyers of an 
intracompany manager for a cartridge refill kiosk company that 
was moving from Spain to the United States. The business took 
off. They submitted an I-140 for the CEO. It was denied even 
though people who reported to him had been approved and so now 
the company is looking to move outside of the U.S.
    I say this not to be critical of you, Mr. Mayorkas, because 
you are a breath of fresh air for this agency. You have 
computerized it. You have modernized it. You have rooted out 
fraud. But what can we do systematically to make sure that our 
anti-fraud efforts don't tie up legitimate businesses?
    I worry that if you delay--the easy thing to do is to say 
no and saying no has a price to our economy because when you 
just say no, companies move offshore and Americans lose jobs. I 
know you care about that. What are your thoughts on that?
    Mr. Mayorkas. Thank you very much, Ranking Member Lofgren.
    Let me, first, say that one will always be able to present 
to any large organization an example of a mistake that has been 
made.
    Ms. Lofgren. Sure.
    Mr. Mayorkas. But I am immensely and deeply proud of the 
quality of the work that is performed at U.S. Citizenship and 
Immigration Services.
    It is all about quality. It is all about the quality of 
work that we deliver, and I agree with Chairman Gallegly's 
statement that there is never a legitimate reason to deny a 
petition where the beneficiary is eligible for the benefit and 
there is never a reason to approve a petition that does not 
meet the statutory requirements.
    Ms. Lofgren. I agree with that as well.
    Mr. Mayorkas. And we have focused extensively on improving 
the quality of our work and providing the tools to adjudicators 
to perform at the highest level. They have that desire, they 
have that drive and they have that commitment to our agency.
    In the realignment, to which I referred in response to the 
Chairman's first question, I created the Office of Performance 
and Quality to really shift the focus of our agency from an 
agency that historically has put a great deal of prioritization 
on speed to the quality of our work, and the approval or denial 
rates are not defining.
    What is important is: are we approving the cases that 
should be approved, are we denying the cases that should be 
denied, and are we providing the adjudicators with the tools to 
do that.
    Ms. Lofgren. If I may, Mr. Chairman, it seems to me that 
sometimes there are informal methods to help improve processes, 
and it is not you. It is the State Department. But I think back 
to years ago of a case in my office, my constituent, an 
American citizen, who needed a kidney transplant and her 
brother, her younger brother, wanted to donate that kidney. I 
got a call from the physician, her physician, the surgeon at 
Stanford, and said she is going to die if we can't get this 
done in a time frame.
    Her brother went in to get a visa and was denied and so we 
sent an inquiry please--you know, we have talked to the doctor. 
The physician called and they denied it again, and I just wrote 
to the State Department, this is your decision but if you kill 
my constituent, I mean, I think 60 Minutes is going to cover 
it.
    And so somebody sometimes needs to look at these things 
from outside and say, yeah, this is fraud, we don't want to 
approve it, or we are all human. Mistakes can be made and to 
correct them quickly instead of after 2 years is an appropriate 
thing to do.
    My time has expired, Mr. Chairman. I yield back.
    Mr. Gallegly. I thank the gentlelady for being sensitive to 
the clock.
    I would now yield to Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman.
    I thank both of our witnesses. First, Mr. Edwards, this 
phrase ``get to yes,'' is that a phrase that originated with 
you and if so what evidence did you find to support the notion 
that there has been a shift in the paradigm and now the 
objective is to get to yes as opposed to get to correct or get 
to complete, which would make more sense to me?
    Mr. Edwards. Thank you, sir.
    We don't know who originated that phrase. It is something 
we came across many times during our field work during this 
inspection. But determining who originally said it was not our 
focus of our review. So I am not sure who started that.
    Mr. Gowdy. Well, let me----
    Mr. Edwards. I know Director Mayorkas talks about it in his 
testimony about getting to the truth but this getting to yes, 
we don't know who originated that.
    Mr. Gowdy. Getting to the truth would be very hard to 
disagree with. Getting to yes is a little more subjective, 
particularly in light of fraud referrals. Let me ask you one 
other thing before I speak to the director.
    The other phraseology that I found problematic was the 
notion that outside counsel is running the office, that private 
immigration attorneys are running the office.
    What substantiates that allegation? Was it pervasive? Was 
it episodic? How did that wind up in your report?
    Mr. Edwards. Well, there were several cases of this type of 
improper pressure brought to our attention. I don't know the 
exact number in front of me but I would be happy to provide 
that to you in writing or I can come by and brief you.
    Mr. Gowdy. Well, I would like that and let me start by 
saying I listened very intently as you went through your 
background, particularly as a prosecutor. I have great regard 
for that. I commend you for the years you have served. You 
mentioned as a Federal prosecutor.
    I don't know whether you were a state or not but, 
regardless, thank you for your service. You will agree, I am 
sure, that if there were an indication that the criminal 
defense bar were running the DA's office we would find that 
very objectionable and while the reality matters, and I am not 
overlooking the reality, the perception matters as well. And if 
there is a perception within the office that outside counsel 
has more influence than the reviewers within the office, that 
is a problem.
    So did it exist before you got there? What are you doing 
about it or is it an unfair accusation?
    Mr. Mayorkas. Thank you very much, Congressman, for your 
inquiry because I think you hit on a very important point, that 
if there is a perception within the agency that is quite 
divorced from actually what is really happening, we, as 
leadership in the agency, have to address that even if that 
misperception is amongst an incredibly small number of people.
    I have spoken repeatedly throughout the agency about the 
fact that there should not be a culture of ``get to yes'' nor 
should there be a culture of ``get to no,'' of which we are 
also accused, but rather the culture that should prevail from 
every quarter and across the entire agency is a culture of 
``getting to right,'' which I think you alluded to.
    The notion that outside counsel or anyone outside our 
agency runs our agency is categorically false, of course, and I 
think what the inspector general's report reveals to us is that 
we have to communicate a bit better throughout the agency and 
amplify the messages that we already have communicated, I, in 
particular, everywhere I go throughout the agency, not only 
domestically but internationally.
    Mr. Gowdy. My time is almost up. I want you to hearken back 
to the old days as an AUSA. If you had made a decision and the 
criminal chief or the civil chief had overruled you because 
they had gotten a phone called from defense counsel you would 
be appropriately outraged.
    Did you find any instances where that did happen, where the 
decision maker was overruled either because an email or a 
telephone call was placed to a supervisor?
    Mr. Mayorkas. I myself have not either as a Federal 
prosecutor in the United States Attorneys Office for 12 years 
or as the Director of this agency.
    Mr. Gowdy. Mr. Edwards, did you find any evidence that 
outside counsel was able to overturn decisions that were made 
by line reviewers?
    Mr. Edwards. Well, a poorly documented and regulated 
process to allow some cases to be reexamined in a favorable 
light is undesirable. It lacks transparency and lacks internal 
controls and it creates unfairness. Who you know should not 
affect the outcome of the process, of the petition, but I am 
not aware of any myself.
    Mr. Gowdy. The clock is off but I don't think that means 
you are giving me unlimited time so----
    Mr. Gallegly. Time of the gentleman has expired and at this 
time the Chair would yield to the gentlelady from California, 
my good friend, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman.
    I am very appreciative for you holding this hearing. I 
would like to welcome our witnesses today and say hello to my 
old friend, Mr. Mayorkas, who served as U.S. Attorney in the 
L.A. area and I got to know him. I am very pleased that he is 
here with us today in this very important role.
    I simply want to get a better explanation of the EB-5 
foreign investor visas and try and understand the requirement 
for investment in high unemployment areas with investments of, 
I think, $500,000 or so.
    We have been trying to figure out--for example, in the L.A. 
area we have located all of our regional offices. We are trying 
to determine how they define the high unemployment areas 
getting the benefit of these investments. Could you help me to 
understand this a little bit better, Mr. Mayorkas?
    Mr. Mayorkas. Thank you, Congresswoman.
    The EB-5 program is an immigrant investor visa program that 
provides (in tremendous summary fashion) that a foreign 
investor who invests the required amount of capital in a new 
commercial enterprise that creates at least ten new jobs may 
obtain conditional lawful permanent resident status, and the 
amount of investment that must be made is $1 million unless the 
new commercial enterprise is located in what the legislation 
describes as a targeted employment area, an area of high 
unemployment, specifically one that endures 150 percent of the 
national average.
    And the targeted employment area is defined geographically 
by a state according to the regulations that implement the 
statute and then our agency verifies that the geographic 
boundaries defined by the state as a targeted employment area 
actually do suffer 150 percent of the national average of 
unemployment. That is a very quick sketch of the program.
    Ms. Waters. Does it work?
    Mr. Mayorkas. The program does work. We can provide data if 
you should so request with respect to the amount of capital 
that has been invested in the United States and the number of 
jobs that have been created as a result of the program.
    Ms. Waters. So when you have potential investors do you 
suggest places for them to invest? And most of these are like 
construction projects, I understand.
    But are they looking for places to invest? Do you suggest 
to them where they can go where it would be helpful for dealing 
with unemployment? How much do you get involved in this?
    Mr. Mayorkas. Congresswoman, we do not encourage investment 
in a particular project. We do not make recommendations with 
respect to the advisability of an investment.
    Rather, it is our responsibility to determine whether the 
petitions that have been submitted to us do or do not meet the 
statutory eligibility requirements and, on the facts that are 
presented to us in adherence to the law that Congress has 
passed, whether the petition should be approved or denied.
    Ms. Waters. Are you----
    Mr. Mayorkas. That is--if I may, Congresswoman, that is the 
standard that guides all our work, not just with respect to the 
EB-5 program.
    Ms. Waters. Are you familiar with this article by Patrick 
McGheehan and Kirk Semple dated December 18, 2011, that says 
``Rules Stretched as Green Cards go to Investors?'' Are you 
familiar with this article?
    Mr. Mayorkas. I am.
    Ms. Waters. And do you agree or disagree with it?
    Mr. Mayorkas. It is not really a question of whether I 
agree or disagree with it, Congresswoman, respectfully.
    What the report, I think, sought to identify was what the 
reporters perceive as a potential for abuse in the regulations 
that define a targeted employment area and, specifically, the 
ability of states to designate that.
    Ms. Waters. This article talks about the giant Atlantic 
Yards project in Brooklyn which abuts well-heeled brownstone 
neighborhoods that has qualified for special concessions using 
a gerrymandered high unemployment district. The crescent-shaped 
zone swings more than two miles to the northeast to include 
poor sections of Crown Heights and Bedford-Stuy.
    A local blogger and critic of Atlantic Yards, Norman Oder, 
has referred to the map as ``Bed-Stuy Boomerang.'' Are you 
familiar with that?
    Mr. Mayorkas. I am familiar with the article. I did not 
study the underlying case about which they reported.
    Ms. Waters. Mr. Mayorkas, have you studied any of the cases 
that have been identified either in this article or other 
articles that maintain that the rules are being stretched?
    Mr. Mayorkas. I am familiar with the concerns underlying 
the reporters' identification of particular cases.
    Mr. Gallegly. The time of the gentlelady has expired. 
Before I go to Mr. Gohmert, I just briefly want to make a 
clarification.
    When I introduced our director as the former U.S. Attorney 
for the Central District of California, I didn't note that the 
Central District of California, which is my home, is also the 
largest district in the Nation by population. So that may 
answer your question, Mr. Gowdy.
    With that, I would yield to Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman, and I appreciate the 
witnesses being here today.
    It is rather fortuitous as far as the timing of this 
hearing and my friend from California brought out the EB-5 visa 
issue because I have been finding out more about that just in 
recent days because here is the scenario.
    A man named Hector Hernandez Javier Villarreal, former 
secretary executive of Tax Administration Service of Coahuila, 
Mexico, apparently was arrested with his wife, charged with 
stealing money, embezzling money from Mexican banks.
    Local law enforcement in east Texas tell me that they were 
told it could be hundreds of millions, even billions of dollars 
that were embezzled.
    Anyway, they were arrested and folks back home were told 
they put up a million dollars in cash to be bonded out of jail 
in Mexico and then applied for an EB-5 visa, which was granted.
    I am not sure if there was a policy of ``get to yes'' but 
certainly yes was gotten to rather quickly with these folks 
because they needed out of Mexico if they were going to be true 
fugitives and jumped their bond. So they came to east Texas on 
a EB-5 visa.
    Local law enforcement and Homeland Security personnel in 
Texas were told that actually within two or 3 days of the visa 
being granted it was revoked. Well, local law enforcement in 
Tyler, Texas, stopped a car for a traffic violation. They have 
a good sense on some things just not seeming right when they 
found a car with $67,000 in cash, two kids, shotgun and a 
driver.
    They started running these folks and stirred up a lot of 
interest of ICE as well as Homeland Security. ICE immediately 
stepped in, wanted to know why they were running the shotgun, 
which also raises issues. I wonder if this was involved in 
``Fast and Furious.'' We have no idea.
    But the Federal authorities stepped in. ICE took these 
folks and the materials that were obtained by local law 
enforcement to the Dallas detention facility and then Homeland 
Security reported to the sheriff's office in Tyler, also 
concerned about the running of the name and the gun, and they 
were told, well, you have to follow ICE because they have taken 
these folks to Dallas.
    Once in Dallas, the law enforcement tells me that the State 
Department told them they had held them for 48 hours, they got 
to let them go--that even though the visa was revoked they got 
into the country before the visa was revoked.
    Therefore, they are lawfully in the United States and 
therefore you have got to let them go anywhere they want to go 
in the United States. So ICE reluctantly, as I was told, 
released them and within a day or two the State Department 
said, you know what, our neighbor to the south has warrants out 
on these folks.
    We really need to get them back. But since they had such 
large amounts of cash they have apparently not had trouble 
going to other places as yet undetermined.
    So it raises all kinds of questions. Are people able to 
just buy their way into this country by saying look, you know, 
we know you have got tough economic times in the U.S. so 
whether it is a million dollars or, as I understood it, these 
folks were willing to put up $500,000. It must have been, 
perhaps, in a high-unemployment area.
    But it sounds like an EB-5 visa is just that, a way for 
people to buy their way into this country. And why in the world 
would a State Department direct the release of people for whom 
there were warrants out in our neighbor country? Supposedly, 
the State Department wants them to be a law and order country 
in Mexico.
    So I am open to any suggestions as to how we correct this 
kind of fiasco from happening, and it makes you wonder do we 
have terrorists that have utilized this same system to buy 
their way in. But any suggestions either one of you way may 
have.
    Perhaps we need an IG inspection on this or an 
investigation on just what all has gone wrong here. But any 
comments?
    Mr. Mayorkas. Congressman, thank you.
    I am not familiar with the case.
    Mr. Gohmert. Well, I didn't figure you would be but if 
things were as have been revealed to me as I have conveyed to 
you I would like your suggestions on how we fix things the way 
they are now.
    Mr. Mayorkas. Let me, if I can, given my unfamiliarity with 
the case that you describe, make some critical foundational 
points.
    Number one, we as an agency conduct extensive background 
checks of individuals who seek to enter the United States----
    Mr. Gohmert. Or you are supposed to.
    Mr. Mayorkas. We do. Who----
    Mr. Gohmert. Well, it would have turned up a warrant if 
that had been done here.
    Mr. Mayorkas. As I said, Congressman, I can't speak to the 
fact of that----
    Mr. Gohmert. Right.
    Mr. Mayorkas. Of the case but----
    Mr. Gohmert. So all you can say is you are supposed to do a 
thorough background check.
    Mr. Mayorkas. Yes, indeed.
    Mr. Gohmert. Right.
    Mr. Mayorkas. Yes, indeed. And we adhere to our 
responsibilities scrupulously in a way that makes me quite 
proud. We have actually expanded the breadth and frequency of 
the background checks that we conduct during my tenure.
    You asked a question about the EB-5 program and whether it 
is really a vehicle for individuals to purchase entry into the 
United States.
    The EB-5 program--and I would respectfully submit that it 
is not--the EB-5 program does not provide, as legislated by 
Congress, that if you pay $500,000 in a targeted employment 
area or $1 million outside of one you shall gain entry into the 
United States, rather that you must invest your capital into a 
new commercial enterprise that creates jobs for United States 
workers.
    It is an immigrant investor visa program that is designed 
to create jobs for U.S. workers and so it is not a vehicle for 
individuals to buy a visa. And so I would welcome the 
opportunity to speak with you separately.
    I will learn about the case to which you refer and I will 
be in a position to address the facts of the case specifically.
    Mr. Gallegly. The time of the gentleman has expired.
    Mr. Gohmert. Mr. Chairman, could I just ask unanimous 
consent to ask the IG if this is something he would be able and 
willing to investigate?
    Mr. Gallegly. Without objection.
    Our day is getting short. We have another panel. We have to 
be out of here by 4:30.
    Mr. Edwards. Congressman, if the Chairman makes the 
request, I will definitely look into it.
    Mr. Gohmert. Okay. Thank you. Chairman, I know where I need 
to go after the hearing.
    Mr. Gallegly. The time of the gentleman has expired.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Again, let me thank the witnesses for 
their presentation and as well to acknowledge the Chairman and 
the Ranking Member for this hearing.
    First of all, Mr. Edwards, did you find fraud, conspicuous 
and open fraud, in this process that the former U.S. Attorney 
is over the benefits aspect of immigration? Did you find 
conspicuous fraud?
    Mr. Edwards. No, ma'am.
    Ms. Jackson Lee. All right. A wonderful Greek name, I 
believe, Mr.--I want to pronounce it right--it is Mr.----
    Mr. Mayorkas. It is Mr. Mayorkas and I come from a long 
line of bad spellers. It is a Spanish name.
    Ms. Jackson Lee. Spanish. All right. [Laughter.]
    Then I stand even more corrected.
    Mr. Mayorkas, let me make sure that that is correct. And 
the agency that you are over out of the department is a civil 
agency, right? It doesn't deal with criminal issues.
    Mr. Mayorkas. That is correct. It is an administrative 
agency.
    Ms. Jackson Lee. Okay. And so the idea of this issue of 
private lawyers running your shop, what does that mean to you? 
And I am going to be doing rapid questions. I mean, what do I 
understand when someone says private lawyers are running the 
shop?
    Mr. Mayorkas. What it means is that because we are a 
transparent agency and an agency that engages with all 
stakeholders that apparently that transparency has created a 
misimpression that somehow somebody other than the leadership 
of the agency runs the agency, and it is a misperception that 
we will address through robust communication.
    Ms. Jackson Lee. Well, let me thank you for that because, 
first of all, being administrative and not criminal or not 
being a judicial agency per se the issue of ex parte contact is 
not an issue. Lawyers have a right to have a conversation. They 
are civilians.
    Your workers or employees are civilians as well and I 
assume they take information from whoever they might be able to 
get it from, including advocates for immigrants. Is that not 
correct? There are some individuals who will have an advocate 
from a nonprofit agency.
    I assume they have the opportunity to bring information 
forward on behalf of an immigrant or someone seeking status. Is 
that correct? You take information from all?
    Mr. Mayorkas. We take information from all and we have 
established channels to receive that information. I think, if I 
may, Congresswoman, what the Chairman was concerned of and what 
the inspector general focused on and what we are focusing on 
always is the fact that there should be no communication that 
provides an avenue for undue influence on the adjudication, 
that an adjudication must be independent based on the facts and 
the law and nothing else.
    Ms. Jackson Lee. And I agree with that. But as my, and I do 
not want to put words in her mouth, but as my colleague from 
California, the Ranking Member, indicated, where there is life 
or death matters we have all made mistakes and your agency has 
made mistakes in its denial. And so sometimes people are 
extremely zealous to save a life to get someone with a 
transplant, to get families reunited who were trying to get 
back from a funeral and they are in India and they have been 
begging for--while the person was ailing. Then the person dies 
and they are denied.
    So I don't want this hearing to be a statement that you 
should close your eyes and ears to mercy requests, to 
information. I have no problem with transparency and I want the 
system to be held to the highest standard. So let me just lay 
that on the record and let me go forward on these questions.
    I happen to think there is some value to the employment-
based visas. It is my understanding that 10,000 visas a year 
are set aside for the EB-5 program. However, less than half of 
these are actually issued. What do you see as the major 
obstacles for that?
    Mr. Mayorkas. If I may, Congresswoman, I----
    Ms. Jackson Lee. And let me just give these questions so it 
could be on the record. It is my understanding that each 
immigrant who is accepted on an EB-5 their investment is 
required to create U.S. jobs.
    I would like to know how you monitor that and I think that 
is a response to Ms. Waters' question as to how do you tie in 
Bed-Stuy and don't do anything for them. Then under EB-5 what 
kind of accountability is there for contributing to deficit 
reduction and job creation. We can use these effectively and I 
think they should be used. But go ahead, Mr. Mayorkas.
    Mr. Mayorkas. Thank you, Congresswoman.
    The EB-5 program has enjoyed growth in its usage over the 
last 3 years. We are improving the quality of our adjudications 
and we are focused on improving the integrity of the program as 
well.
    So while the visa program has been underutilized in terms 
of the maximum number of visas that are allowed, we have seen 
material growth in its usage.
    Ms. Jackson Lee. Is it----
    Mr. Gallegly. The time of the gentlelady has expired, Mr. 
King.
    Mr. King. Thank you, Mr. Chairman.
    I thank the witnesses for your testimony and your response 
to the questions from the panel. I turn first to Mr. Edwards 
and ask him, first, I want to give you an opening to respond to 
anything that might have been said that you didn't have the 
chance to say, but then if you could go into a little more 
depth on your sense of the analysis of the ``get to yes'' 
culture that you have observed exists within the department.
    Mr. Edwards. Well, the 400 folks that we interviewed and 
surveyed there is extreme pressure for them to get to yes. 
There are cases that are clearly approvable and there are cases 
that is clearly deniable. It is the cases in that gray area 
that raises the concern.
    Adjudicators, ISOs, have told my folks that it is easier to 
say yes and approve it and if they don't approve it, it comes 
back to them. So that is what we found.
    Mr. King. It is easier to say yes because there is a load 
of paperwork to fill out if you say no?
    Mr. Edwards. Because there is a pressure to get things 
approved.
    Mr. King. Uh-huh. But you say it is the culture. Is there a 
process also? Can I count the extra pieces of paper I have to 
fill out if I say no as compared to those if I say yes, as an 
officer?
    Mr. Edwards. Yes. Yes.
    Mr. King. Did you quantify that in your report or is that 
possible to quantify that?
    Mr. Edwards. I will have to get back to you for that.
    Mr. King. I would pose that question to you formally in the 
hearing and ask you to get back on that.
    Mr. Edwards. Sure.
    Mr. King. If you can quantify how much more paperwork is 
required to say no than it is to say yes.
    Mr. Edwards. Sure.
    [The information referred to follows:]
    

    
                               __________

    Mr. King. If it is 91 percent more of that index exactly 
with the forms of the highest level of approvals that we have 
seen.
    I thank you, Mr. Edwards, and then I turn to Mr. Mayorkas 
and I also appreciate your service and your testimony.
    Just curious about, as I was listening in on some of the 
exchanges here, if your department says no to an application 
and that might prevent someone from otherwise exercising a 
privilege, not a right but a privilege, and that could be 
extrapolated into the end of life for someone--could be 
anything, it could be a plane that crashed, a car wreck, it 
could be an illness--would you take that as an action by your 
department that would have killed someone?
    Mr. Mayorkas. I look at the question as follows. What is 
the responsibility before us based on the facts that are 
presented and as we apply the laws that Congress has passed, 
and if in fact an individual applies for a benefit to which he 
or she is not eligible, under the laws that have been passed, 
the regulations that implement them and the facts as presented, 
then we are to adjudicate the case accordingly. The 
consequences of an adjudication do not guide the adjudication 
but, rather, the facts and law do.
    Mr. King. Then how does that impact you when you hear from 
this panel, if you kill my constituent?
    Mr. Mayorkas. I don't think that is what Ranking Member 
Lofgren was asking me, quite frankly.
    Mr. King. Can you identify that? I would like to hear that.
    Ms. Lofgren. Would the gentleman yield? Because I----
    Mr. King. I would yield. I would like to hear this and I 
think you should have an opportunity to speak to it.
    Ms. Lofgren. I think you misunderstood my point.
    Mr. Gallegly. It is the gentleman's time.
    Mr. King. So I would yield to the gentlelady from 
California.
    Ms. Lofgren. The point I was making, and I think you 
probably didn't hear what I said, this was the State 
Department, not USCIS, and it was a constituent of mine who was 
dying and needed a kidney transplant, and her brother was 
willing to donate his kidney.
    Mr. King. I understood this so far.
    Ms. Lofgren. They denied his application to come in and 
donate the kidney.
    Mr. King. Yes.
    Ms. Lofgren. And we had the doctor calling us, we had the 
hospital, and they just wouldn't listen. And it was their 
decision but I finally said, you know, you kill the constituent 
there is going to be a dust-up. And when they actually did look 
at what the doctor said they issued a visa. The brother came--
--
    Mr. King. Okay.
    Ms. Lofgren. And he donated the kidney and then he went 
home.
    Mr. King. I am reclaiming my time and I appreciate the 
gentlelady reiterating. That was the way I heard it and it just 
troubled me the extrapolation component of that, and I am 
hopeful that another statement the gentlelady made from 
California, the easy thing to do is say no, doesn't get easier 
to say no even if it is the State Department and not USCIS.
    And so I appreciate the testimony that you have had, Mr. 
Mayorkas, that it needs to be an objective evaluation of each 
individual case separate from statistical data on the other 
cases.
    It needs to be on the law and it needs to neither advantage 
nor disadvantage individuals. It needs to respect and reflect 
the rule of law and I think sometimes here we are pushing the 
line back and forth.
    But that is the result that we need yet the data supports 
something otherwise and the culture that must exist that has 
been spoken to by the gentleman, Mr. Edwards, and I am looking 
at the chart here of the approvals and the disapproval rate 
from 2009 until 2011 that show that the disapproval rating has 
gone down, the approval rating has gone up and I haven't heard 
yet to what you attributed that, and I would ask if you would 
let us know what that is.
    What does that data show us then?
    Mr. Mayorkas. Congressman, there are categories in which 
the denial rate has increased and there are categories in which 
the denial rate has decreased and there are times over the 
stretch of history when one would see an ebb and flow in denial 
and approval rates.
    The critical question is, what is the quality of the 
adjudications that U.S. Citizenship and Immigration Services is 
issuing. Are we approving cases that should be approved and 
denying cases that should be denied or are we doing otherwise? 
That is the critical question. It is a matter of quality.
    Mr. King. But what do I learn from the data? Can I draw any 
conclusions from the direction the data has been going over the 
last couple of years?
    Mr. Mayorkas. Well, let us pose a data point that Chairman 
Gallegly presented in his opening remarks. The denial rate in 
the L-1B visa category has increased dramatically over the last 
5 years.
    We can draw from that fact quite a number of conclusions, 
any of which might be right, any of which might be wrong. The 
question that I have and the question that I ask internally is 
not data driven but is addressing the substance of the work 
that we perform.
    Mr. King. Then can I conclude that----
    Mr. Mayorkas. Are we getting it--if I may--are we getting 
it right? Are we requesting evidence when in fact further 
evidence is needed to make a meritorious adjudication and are 
our requests for evidence well framed to further the agency's 
goals and to be clear to the applicant or petitioner?
    Are we deciding a case correctly, not worried----
    Mr. King. I hear your message, Director, and just in 
conclusion here then can I conclude and would you support an 
inclination that the quality of the H-1B applications are 
greater than they have been because that is the trend that we 
are seeing with the approval rates?
    Mr. Mayorkas. I am not prepared to make that conclusion 
based on----
    Mr. King. Thank you. I yield back.
    Mr. Gallegly. The time of the gentleman has expired.
    For clarification purposes, I would just like to follow up 
on the question that was asked of Mr. Edwards regarding the 
process.
    Perhaps, Mr. Mayorkas, could you give us a simple yes or no 
answer, in the process of adjudicating a yes or a no, if there 
is a ``yes'' or an approval it merely requires an approve or a 
stamp ``yes'' whereas if there is a denial there has to be a 
detailed explanation for why there is a denial, not just denied 
versus a rubberstamp ``yes?''
    Is that fundamentally correct, Mr. Mayorkas?
    Mr. Mayorkas. I think it is fair to say, Chairman, and I 
know you asked for a monosyllabic response but I think it is 
fair to say that there are instances in which to deny a case 
requires more paperwork.
    Mr. Gallegly. But the fact remains is it doesn't really 
require more--from a requirement standpoint than a stamped 
``yes'' or an explanation for why it has been denied.
    Mr. Mayorkas. There are occasions when that is so and let 
me, if I can, say that I am addressing that issue as part of 
our Office of Performance and Quality.
    Mr. Gallegly. And that part I appreciate. But historically, 
there is no requirement--I guess the threshold issue is I guess 
you can do a lot of things. But there is no requirement to 
explain anything when you put a ``yes'' down but when you put a 
denial there is a requirement for the rationale for the denial. 
That was my question.
    Mr. Mayorkas. May I----
    Mr. Gallegly. Sure.
    Mr. Mayorkas. May I have a moment?
    Mr. Gallegly. It is my understanding that it is in the 
adjudication manual. That is my question.
    Mr. Mayorkas. I will have to, if I may----
    Mr. Gallegly. Would you check the adjudication manual? And 
we will check it, and just for the record we will make it a 
part of the record of the hearing.
    [The information referred to follows:]
    

    
                               __________

    Mr. Gallegly. I thank the panel for being here, and I 
apologize for getting started a little late. Unfortunately, I 
don't nor does any Member of this Committee have much power 
over when the bells ring around here to go to vote.
    So thank you very much and I look forward to getting the 
responses on those couple issues that we discussed. With that, 
we will call up the second panel.
    Mr. Mayorkas. Thank you, Mr. Chairman. Thank you.
    Mr. Edwards. Thank you.
    Mr. Gallegly. Introducing our second panel, I will let the 
witnesses be aware of the fact that their written statements 
will be entered into the record in their entirety and request 
that you keep your opening statement to the requisite 5 
minutes, and with that I would like to introduce our first 
witness, Mr. Mark Whetstone.
    Mr. Whetstone is the president of the American Federation 
of Government Employees of that National Citizenship and 
Immigration Services Council. Mr. Whetstone joined the 
Immigration and Naturalization Service in 1999 and has since 
held numerous appointments.
    Throughout his career with U.S. Citizenship and Immigration 
Services, Mr. Whetstone has adjudicated thousands of 
applications for work permits, travel documents, permanent 
residence and petitioned for immigrant workers.
    Our second witness is Mr. Bo Cooper, who is the partner of 
Berry Appleman and Leiden in Washington, D.C.'s office where he 
provides business immigration advice to companies, hospitals, 
research institutions, schools and universities. Mr. Cooper 
served as general counsel of the Immigration and Naturalization 
Services from 1999 until February of 2003.
    Mr. Cooper earned his J.D. from Tulane University Law 
School and holds a Bachelor of Arts from Tulane University.
    Welcome to both of you.
    Mr. Whetstone?

 TESTIMONY OF MARK WHETSTONE, PRESIDENT, NATIONAL CITIZENSHIP 
                AND IMMIGRATION SERVICES COUNCIL

    Mr. Whetstone. Thank you, Chairman Gallegly and Ranking 
Member Lofgren, and Members of the Subcommittee.
    I greatly appreciate this opportunity to provide our 
union's input at today's hearing. My focus today is 
specifically on the effects of adjudication, performance 
expectations and training levels of the immigration services 
officer as it relates to benefit fraud in the immigration 
service system.
    It is our belief that continuing pressures in the 
production environment of adjudications coupled with inadequate 
levels of training pose a significant threat to protecting the 
immigration system from benefit fraud and consequently 
impacting national security.
    The recent report by the DHS OIG concerning the effects of 
adjudication policies on fraud detection correctly points to 
the need for USCIS to permit more time for officers' review of 
case files.
    This isn't the first time the agency has heard the same 
recommendation. In May of 2002, the DOJ OIG suggested that 
performance standards should be changed to allow more time to 
review files and seek additional information. In response to 
this most recent recommendation, USCIS did not concur and seeks 
to further analyze the need for additional time by 
adjudicators.
    There are many things in the most recent report that we can 
embrace. However, the efforts by USCIS in the area of 
performance measurement is not one of them. The report would 
lead you to believe that the production performance measures 
for all adjudicators were rated non-critical in fiscal year 
2011.
    In fact, only 40 percent of the adjudicator population 
nationwide realized that adjustment in their performance 
standards and even then the reality was that other critical 
elements were used to entice officers toward production quotas.
    The larger segment of adjudicators working in field offices 
saw no reduction in the quantity-based production standards. 
Several officers reported working through rest and lunch breaks 
to reach quota levels necessary to attain just satisfactory 
ratings.
    Again, this is nothing new to CIS. In 2002, the GAO 
reported that because performance appraisal system was based 
largely on number of cases processed rather than on the quality 
of the review, adjudicators are rewarded for the timely 
handling of petitions rather than careful scrutiny of their 
merits.
    Although the recent OIG report states that the decision to 
make production standards non-critical is a significant change 
that should improve fraud detection and national security, 
USCIS has recently moved to change that standard back to a 
critical element.
    In reality, production pressure was never off and this 
latest action is a reversal of their stated position in the 
report. In that same report, supervisors and managers noted 
that adjudicators missed alias names for benefit seekers when 
conducting security checks during the adjudication process.
    They go on to assert pressures to adjudicate quickly may 
hinder an adjudicator's ability to identify and query alias 
names during the security check process. It is our belief that 
such issues in this area pose direct hindrance to the detection 
of immigration benefit fraud.
    In an August of 2011 report, the DHS OIG observed that 
USCIS has not developed a formal post-basic fraud training 
program. Additionally, fraud prevention training is not 
provided to all adjudicators responsible for just adjudication 
of specific benefits.
    We understand USCIS is currently developing post-basic 
training fraud courses. We also are told that USCIS has agreed 
to begin the necessary steps to ensure officers receive this 
training annually once their courses are developed.
    Although we can applaud any steps toward adequate training 
for adjudicators, our concern is the frequency of the training 
will be inadequate. The people perpetrating fraud work hard 
every day to alter their methods.
    Providing training to officers only on an annual basis 
would continue to leave them without sufficient confidence to 
know when to refer cases of suspected fraud to officers with 
more expertise and equipped with advanced research 
capabilities.
    We believe this is a gaping hole. We know that it is not 
easy to strike the balance between efforts to process the 
volume of requests for immigration benefits while protecting 
the system from fraud. It is our belief that USCIS policies in 
this area of production expectations and frequency of training 
could have a negative effect on the detection of immigration 
benefit fraud.
    This concludes my statement. I look forward to answering 
your questions.
    [The prepared statement of Mr. Whetstone follows:]
    
    
    
                               __________

    Mr. Gallegly. Thank you very much, Mr. Whetstone.
    Mr. Cooper?

               TESTIMONY OF BO COOPER, PARTNER, 
                 BERRY APPLEMAN AND LEIDEN, LLP

    Mr. Cooper. Now? Thanks.
    Thank you, Chairman Gallegly, Ranking Member Lofgren and 
distinguished Members of the Subcommittee. I really appreciate 
the opportunity to join in this hearing today.
    I would like to focus my remarks on the inspector general's 
report and I would like to state at the outset that when I was 
in government much that we did was made better because of 
recommendations that were given to us by the inspector general.
    They serve a critical role and much that the USCIS does 
will be made better by the recommendations in this report. 
There is a lot in there that will help the agency to become 
better in its critical responsibility to ferret out fraud in 
the system and to improve our national security protections.
    But there are certain aspects of the report that are not in 
this vein and that, in my view, lack foundation, they are 
contrary to what happens in the actual adjudications world and 
they would be deeply problematic if they were to inform policy 
choices.
    I would like to focus my testimony on four points today. 
The first is that the inspector general's conclusions that the 
USCIS fosters a ``get to yes'' culture and that it has got an 
institutional bias in favor of approvals and against requests 
for additional evidence were made without any evaluation of 
agency data or any analysis of what the agency's actual 
adjudication patterns are.
    Second, the data that surrounds the agency's actual 
adjudication patterns doesn't support this conclusion. It 
refutes them. For the key employment-based benefits 
adjudications, as we have heard today, the rates of denials and 
RFEs have skyrocketed over the last several years.
    Third, these actual adjudications patterns have serious 
real-life consequences that hurt the country's interests. These 
programs exist to foster economic activity that helps the 
United States.
    Careful responsible employers are having greater and 
greater difficulty because of these actual adjudications 
patterns in bringing in talented foreign professionals who 
could help drive American growth and foster economic recovery.
    And fourth, any of the report's recommendations that would 
lead to guidance to simply encourage numerically more RFEs or 
to raise the standard of proof in a way to prompt more denials 
would just make this consequence worse. The data indicates that 
if there is an adjustment trend to be managed at USCIS, 
certainly in the employment-based adjudications, it is not a 
trend toward reckless approvals.
    It is a trend toward more restrictive decision making in 
programs that could promote economic growth in the United 
States.
    The key issue with this aspect of the report--again, many 
elements of it were good--the key issue is that it drew 
conclusions based on discussions and statements that are 
important as statements and as indications of what adjudicators 
feel but they should have led to more analysis of data.
    They were conclusions that would lead anyone, and the 
Subcommittee was right to hold this hearing, anyone to think it 
is a rubberstamping agency that is approving questionable 
adjudications.
    But the data don't show this at all. As we have focused on 
today, the data shows an agency moving in the opposite 
direction and the L-1B program is the clearest indication.
    Denial rates have quadrupled since 2008 in the L-1B 
program. RFE rates have skyrocketed so that two-thirds of the 
matters that are filed in the L-1B arena are subject to 
requests for additional evidence.
    This is, clearly, contrary to the notion of a 
rubberstamping agency that is trying to handcuff its 
adjudicators in their efforts to reach correct decisions. And 
the L-1B program is, in addition to the starkness of the 
statistics, it is an important illustration because of the 
strength with which it illustrates the problems that result 
from these adjudications patterns.
    I think we can all agree that not all brain power in the 
world exists in the United States and these programs, these L 
and H and O programs, exist because of Congress' recognition 
that it can be in our economic interest to bring these people 
onto our team in the U.S. It helps American workers. It helps 
the U.S. economy.
    These kinds of adjudications patterns are restricting the 
ability of American employers to do that in ways that could 
help return job growth and economic strength to this recovery, 
and therefore, in my view, it was not responsible advice to the 
agency or to the Congress to draw the conclusions based on the 
absence of data that were drawn in the inspector general's 
report and that should not be the basis of policy making in 
this arena.
    Thanks, and I would be glad to respond to any questions 
that the Subcommittee may have.
    [The prepared statement of Mr. Cooper follows:]
    
    
    
                               __________

    Mr. Gallegly. Thank you very much, Mr. Cooper.
    Mr. Cooper, your testimony discusses at length the USCIS 
data showing that denial rates in the L-1B visa category had 
jumped from 7 percent in 2007 to 27 percent in 2011.
    Looking at this same USCIS data, did you also notice that 
the overall denial rate for non-immigrant working petitions has 
fallen over 30 percent since President Obama took office?
    Mr. Cooper. I am sorry. Which category was that, Mr. 
Gallegly?
    Mr. Gallegly. That was all non-immigrant visas.
    Mr. Cooper. From my reading of the data and my experience 
in seeing the process, there has been an increase in denial 
rates. Now, I think it is important to emphasize that there is 
not a correct denial rate. There is not a correct approval 
rate.
    Adjudicators have to work in every case to figure out what 
the right application of the facts and the law are and get to 
the right result.
    My point is, what I wanted to emphasize is that with these 
skyrocketing RFE and denial rates that should cause us to 
question very seriously the conclusions that the agency is 
prodding its adjudicators to rubberstamp questionable 
applications in a way that is leading to fraud.
    Mr. Gallegly. On that note, over to Mr. Whetstone.
    Is it your understanding that the quantity of cases 
processed will soon once again be officially considered as a 
critical element of the adjudicators' performance rating?
    Mr. Whetstone. That is absolutely correct. As a union, we 
received notice from the agency in September that they intended 
to move the 40 percent--in fact, that is all that were really 
non-critical. Of the ISOs in the country only 40 percent were 
placed on a non-critical element. We received notice in 
September that yes, they are moving right now to take the 
element back to critical.
    Mr. Gallegly. What are the national security implications 
of pressure on adjudicators whether it come from outside 
immigration attorneys or from USCIS officials or supervisors to 
improve immigration benefits?
    Mr. Whetstone. Thank you. I think that the easiest way to 
say that is the wrong person getting the benefit. If you have 
pressures being placed on you to move quickly in adjudicating 
cases, the likelihood of you cutting corners, possibly letting 
mediocre cases, you know, borderline cases just flip to yes 
instead of to a denial, I think that would be the national 
security implications.
    Mr. Gallegly. Okay.
    Mr. Cooper, are you familiar with the July 2008 
Administrative Appeals Office decision in the GSE case?
    Mr. Cooper. Yes, Mr. Chairman. I am.
    Mr. Gallegly. Are you familiar with the issuance of the 
Neufeld H-1B memo?
    Mr. Cooper. Yes, Mr. Chairman.
    Mr. Gallegly. Do you agree that according to the data 
provided by USCIS a rise in denial rates for non-immigrant 
worker petitions seems to have occurred shortly after the GST 
decision and around the time of the Neufeld memo issuance?
    Mr. Cooper. Yes, I do.
    Mr. Gallegly. Would you like to maybe just expand that a 
little bit?
    Mr. Cooper. Yes, I would.
    First, with respect to the Neufeld memo on H-1Bs, that was 
focused principally, as was noted before, on the employer-
employee relationship and it was addressed mainly at the 
agency's perceived problems when H-1Bs were being sent to 
third-party, to client sites, rather than the site of the 
employer. What we have seen in practice is that the rise in H-
1B RFE rates and the rise in H-1B denial rates actually affects 
cases far beyond those that are just thirty-party placement 
cases.
    Likewise, in the GST situation this, in my view, is a very 
serious adjudications issue at the agency because, in my view, 
the USC takes the position, correctly I think, that GST is a 
non-precedent decision. But I actually do think that it is very 
closely tied to the increase in denial rates for L-1Bs.
    My real concern with that case and its effect is that that 
is precisely an example of a situation where, despite the 
absence of agency policy making and despite the kinds of 
interaction with the public that the Administrative Procedures 
Act would call for, for example, when there is to be a policy 
change, this is an adjudications-level change toward greater 
restriction that has brought about severe limitations in the 
program in ways not that ferret out fraud but that actually 
hinder businesses from being able to bring in employees who 
could help spur economic recovery in the United States.
    Mr. Gallegly. I see my time has expired.
    I yield to the gentlelady from California, Ms. Lofgren.
    Ms. Lofgren. Well, first, let me thank both of the 
witnesses for not only being here today but their service--Mr. 
Whetstone, your service in the public and, Mr. Cooper, your 
many years of service as general counsel. They are appreciated 
and the expertise you bring here today is appreciated.
    Looking at the report, 109 individuals said that they 
didn't have enough time on the interviews and I am sure that 
those 109 individuals were sincere in that analysis. However, 
we have got to have some kind of--I mean, in the private sector 
you are going to have some measurement of outcome.
    I mean, I am assuming, Mr. Whetstone, that you are not 
suggesting that productivity not be a factor at all in 
considering how people are doing as employees.
    Mr. Whetstone. No, not at all. But I think that it should 
be taken from possibly the individual level to team level or 
office level where you----
    Ms. Lofgren. But if you have one guy who is not doing 
anything and the rest of the team is knocking themselves out 
you should be able to look at the guy who is not performing.
    Mr. Whetstone. I think the proper motivational efforts by 
the supervisory staff when they recognize that would be 
appropriate, yes.
    Ms. Lofgren. Okay. Thank you very much. I just thought it 
was important to clarify that.
    Now, Mr. Cooper, you were general counsel under the Bush 
administration just before the current administration and do 
you see a difference--now you are in the private sector--do you 
see a difference in terms of in your interactions with the 
agency that the agency is trying to approve questionable 
applications?
    Mr. Cooper. I don't see at all that the agency is trying to 
approve questionable applications. In my experience, what the 
agency is doing is narrowing access to these critical visas.
    Ms. Lofgren. Now, I will just lay out. I mean, we don't 
have really good data at all as to the quality, as Director 
Mayorkas had said. I mean, what is it, lies, darn lies and 
statistics?
    I mean, we have some numbers but you really can't--what we 
want is quality decisions. We don't want fraudulent 
applications to be approved but legitimate applications, we 
don't want to tie them up because we pay a price in that case 
as well.
    I had a concern just based on anecdotes that L-1s were 
substituting for H-1Bs when we hit the H-1B cap and, honestly, 
I shared that concern with the agency because that would be an 
improper use of the L-1 visa.
    Are you seeing that the request for evidence is related to 
ferreting out what, of the L-1B applications, really were more 
properly H-1B individuals?
    Mr. Cooper. I do think there is a sentiment among 
adjudicators that Ls are being improperly substituted for Hs 
and that that is driving a lot of their general instincts to be 
a little bit narrower on Ls.
    I mean, in my view, there is not a situation where a case 
must be an H or must be an L. They have differing requirements.
    Ms. Lofgren. Right.
    Mr. Cooper. But there certainly are cases where a person's 
qualifications and the job qualifications will be overlapped 
between the two and in that instance it seems perfectly 
appropriate for the employer to be able to choose whichever one 
the employer would like.
    And so in that instance, I don't think there is such a 
thing as really improperly using an L for one that should have 
been an H. But one point that is very important about the--you 
know, you raise the issue of the numbers of filings that are 
being made.
    One thing that is very illustrative is that this spike in 
RFEs, request for additional evidence, is coming at a time when 
actually the numbers of L-1B----
    Ms. Lofgren. Are down. Yeah.
    Mr. Cooper. Petitions that are being presented to USCIS are 
dropping and that is inconsistent with the experience that I 
had in government and since where when there is a program that 
seems to have some gap or some loophole that would draw fraud 
usually the numbers of actual petitions----
    Ms. Lofgren. Yeah. It usually spikes.
    Mr. Cooper. Go up in that setting.
    Ms. Lofgren. Yeah. Can I ask you a question about sort of 
the informal appeals process, for lack of a better name?
    I used some real-life examples in my opening statement 
where--and, you know, we are all human. We can all make a 
mistake. You read a chart and it says 15,000 but if you read at 
the top it is in thousands so it is actually 15 million.
    The inspector general seemed to indicate that if an 
inspector had made an error and read that as 15,000 instead of 
15 million it would be somehow improper to point that out so it 
could be corrected and that the only way to do it would be to 
go to a 2-year appeal process.
    Isn't that what we are talking about? I mean, if you can't 
just give some input oh, by the way, you have denied my client 
under the Cuban Adjustment Act but he is not Cuban and he is 
not applying under the Cuban Adjustment Act, wouldn't that be a 
helpful piece of information to give to the adjudicator, not 
heavy handed but here is a mistake?
    Mr. Cooper. I think that is important both from the 
standpoint of those who present petitions and applications to 
the system and from the standpoint of the agency itself.
    First, from the standpoint of the user of the system, the 
person who is making the application, the inspector general's 
report seems to suggest I guess it is premised on the notion 
that a formal appeal to the Administrative Appeals Office is 
the only appropriate route to be followed where a petitioner 
thinks a decision was mistaken.
    But it is important to just reemphasize that right now, 
according to its most recent processing times report, an appeal 
of an H-1B petition that was denied takes 22 months to be 
resolved. An appeal of an L-1B petition that was denied takes 
23 months to be resolved, almost 2 years.
    That is a time frame that simply does not work in the 
business world that is meant to be served by the proper use of 
these programs and so that is just not a viable alternative 
way. That is just not a viable means of addressing problems in 
today's business world.
    Second, from the standpoint of the agency, it is actually 
in the agency's interest to have situations pointed out to them 
that they can--if there has been a mistake that they can 
correct it in a way that is prompt and that doesn't require the 
additional resources that get tied up in dealing with an 
administrative appeal where it is not necessary and so on.
    And so, in my view, there should be better access for these 
kinds of situations where people are trying to present the 
agency with something that they should have another look at, 
not less. Obviously, if people are, you know, calling and 
saying, can you do me this favor as my pal or that----
    Ms. Lofgren. That would be wrong.
    Mr. Cooper. It is entirely inappropriate. But that is not, 
in my experience, either inside or outside the prevailing 
culture within the agency.
    Ms. Lofgren. My time has expired, Mr. Chairman. Thank you.
    Mr. Gallegly. Thank you, the gentlelady.
    Mr. Gowdy?
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Whetstone, do you believe that there is a culture of 
trying to ``get to yes?''
    Mr. Whetstone. In a short answer, no, I don't. I believe 
that there are some folks that have that perception. I believe 
that sometimes the way--I am taking this from folks that I talk 
to regularly--I believe that they sometimes have that 
perception.
    There are some people that do have that perception. But I 
don't know that that is--there is certainly nothing stated.
    Mr. Gowdy. Well, perception is important, perhaps only 
secondary to reality. So let me see if I can venture into 
reality for a second.
    It seems as if, statistically, denials are down, approvals 
are up and fraud referrals are down. I don't get out like I 
used to but I don't think the human condition has changed that 
much since 2009. So are we just getting better quality 
applicants or how do you explain the statistical discrepancies?
    Mr. Whetstone. Well, I think that, as you laid it out, 
Congressman, I would say that the pressures to move the 
workload might have a lot to do with that, and coupled with 
people or adjudicators' discomfort with the level of training 
that they have in the area of detecting fraud.
    Mr. Gowdy. So it is easier to say yes than no.
    Mr. Whetstone. Nobody complains about an approval. They 
only complain about a denial.
    Mr. Gowdy. So why did you say no when I first asked you 
whether there was a culture of ``get to yes?'' Because it seems 
like you described a culture of ``get to yes.''
    Mr. Whetstone. I don't know that you would call--I don't 
agree with the term ``culture of get to yes,'' I guess, that 
phrase. I don't think that we have a culture----
    Mr. Gowdy. How about disproportionate benefits to saying 
yes as opposed to no? Do you agree with that?
    Mr. Whetstone. I would say that there are pressures placed 
on adjudicators to approve cases rather than go through the 
denial process.
    Mr. Gowdy. Do you agree or disagree that pressure from 
outside attorneys can get a denial turned into an approval?
    Mr. Whetstone. No.
    Mr. Gowdy. You disagree with the email streams that we have 
where that, in fact, has happened?
    Mr. Whetstone. I am not familiar with those.
    Mr. Gowdy. Are you aware of any instances where pressure 
was brought by outside counsel to supervisors and get people to 
change their mind or else overrule them?
    Mr. Whetstone. I think on a regular basis, particularly in 
the interview situations and field offices, that you have 
outside counsel taking issue with how the--if it falls against 
their client that they take issue with the way the interview 
was conducted, et cetera, and I think we see that on a frequent 
basis in the field offices.
    In the service centers, it is probably less frequent. But I 
have known of instances where an AILA attorney or someone would 
make a complaint about some decision that they received and it 
would get reworked, if you will, and the officer is left with 
the impression that it was the outside influences that caused 
that decision to go another way.
    Mr. Gowdy. Well, if we agree on the number that fraud 
referrals are down 22 percent and if we exclude the option that 
the human condition has improved dramatically since 2009, what 
other explanation would there be for a reduction in fraud 
referrals?
    Mr. Whetstone. Well, I think that officers might--like I 
said before, their training level--they probably don't have the 
confidence to actually refer. I think it--we have had reports 
from individuals saying that their supervisors discouraged 
referrals to the fraud detection officers.
    Mr. Gowdy. Are you aware of any retaliation? I think 
Chairman Gallegly began this by making reference to Senator 
Grassley, who was approached by whistleblowers.
    Are you aware of any retaliation against the whistleblowers 
or any complaints of retaliation?
    Mr. Whetstone. I am aware of the complaints by those 
whistleblowers. But as far as retaliation, I can't say that I 
am aware of that, no.
    Mr. Gowdy. But those complaints have not been adjudicated 
yet, or if they have been you----
    Mr. Whetstone. You know, I have really lost track of that 
case. I don't know, you know----
    Mr. Gowdy. I think it would be cases, plural.
    Mr. Whetstone. There is two there, I think.
    Mr. Gowdy. I would yield back the balance of my time, Mr. 
Chairman.
    Mr. Gallegly. I thank the gentleman.
    Mr. King?
    Mr. King. Thank you, Mr. Chairman. I thank the witnesses.
    I would just start, first, with Mr. Cooper and I recall 
your testimony. You addressed earlier that data refutes the 
claims of the previous witnesses and some of the reports that 
you have seen before this Committee today, and you pointed to 
the L-1B program as the example of the data that refutes the 
claim.
    Could you point to another program, another visa, that also 
refutes the claim?
    Mr. Cooper. The L-1B is the most--is the sharpest example 
numerically. But, certainly, across the employment-based 
programs the trend is just the same. With H-1Bs the----
    Mr. King. But if we went--excuse me. If we went, I will 
just say the Obama administration 2009 to 2011, and I look at 
that data, that is the most recent trend we have under current 
administration.
    So do you have any other visa categories other than L-1B 
that would support your position with regard to the data 
demonstrating the opposite of the balance of the testimony 
here, other than your own?
    Mr. Cooper. Sure. Well, in the H-1B program, of course, if 
you go back to 2007 it went from 11 percent to 29 percent in 
2009 and it has subsided since that 29 percent rate. But it is 
still much higher than it had been in, say, 2007.
    Mr. King. We know that there has been some reforms that 
took place that tightened down the regulations. I think you 
answered that response. It was to the question of Mr. Gallegly 
on that.
    So I just look at the rest of the data and I would just 
make the point I have looked at the last 2 years and I can find 
another example that supports your position. It is as marginal 
as can be but it is L-1A in 2009 until 2011. In that gap that I 
am addressing, it went from 13 percent to 14 percent denial 
rate.
    So, you know, statistically, level but the balance of this 
shows the opposite in the data that I am looking at. And I 
would just ask, in your leisure time if you could review the 
data for the 2009 through 2011, which would be the most 
pertinent data we have for the current administration. And not 
to beat that point.
    I just recognize your point but it appears to be an 
exception on the current administration information.
    Another question is, listening and thinking about what the 
IG's testimony was, if it does come down to who you know and 
may or may not--I have listened to Mr. Gowdy's exchange also 
with Mr. Whetstone and you may or may not know that either, 
whether it comes down to who you know depending on where you 
sit and what you hear.
    But if the IG went in and did a thorough examination and 
came back with a report and if it was an issue of who you know, 
how would he know that it was who you know and how could you 
quantify that?
    Can you imagine any way that the IG could actually conduct 
an investigation to come to a conclusion that there is data 
points along the way that would bring it back to it being 
influenced by who you know?
    Mr. Cooper. Yeah. I think the data points would actually be 
quite scant because the fact is that there is no real formal 
way to reach into the agency that is effective other than the 
actual filing of the petition and the paper responses when they 
ask you for more information.
    And so it is not surprising that that sort of impression 
emerges from the commentary of the people who were interviewed 
and those who responded to the district-level online survey. 
And, you know, I think it is important to note that this sort 
of sentiment does exist in the agency. It certainly did when I 
was there. And it is not that the sentiment is unimportant. It 
is very important to have structures that where you get buy-in 
from your adjudications personnel, structures where you can 
make a policy and have your adjudicative personnel abide by it 
substantively and so on. So I am certainly not disputing that 
that sentiment exists.
    Mr. King. Mr. Cooper, would we agree that even when the 
sentiment exists it may or may not be based on fact and that in 
the end it is going to be a subjective opinion from wherever 
you sat?
    If you are an inspector, if you are an IG investigator, if 
you are an attorney that is an advocate, you are going to have 
a different perspective on how much influence might change 
this. But would we agree that immigration attorneys do attempt 
to influence in that fashion?
    Mr. Cooper. Oh, it is certainly the case that attorneys try 
to bring to agency's attention when they think that there has 
been a mistake, a substantive mistake in the adjudication. That 
certainly happens and it should happen more often in my----
    Mr. King. But, I mean, we are not presuming that a well-
positioned attorney wouldn't drop a name here and there when 
they are discussing this with the inspectors--with the 
investigators.
    Mr. Cooper. I am not making an assumption one way or the 
other on that. I can agree----
    Mr. King. But, I mean, we are people of the world here and 
we couldn't possibly assume that that doesn't happen. I don't 
think we need to examine that any further. I just make the 
point that it is subjective.
    People do try to influence with who they know. Whether it 
gets through or not is another question and if it does get 
through there is no way to quantify it. And just would you 
agree with that, Mr. Cooper?
    Mr. Cooper. I would agree with that. It is subjective. In 
my view, it is not at all the case that the agency is owned by 
outside counsel.
    Mr. King. Okay. And watching my clock turn here, do you 
think that it is proper for immigration attorneys to have 
direct access to USCIS supervisors?
    Mr. Cooper. I think that if there were regular access the 
system would probably work better.
    Mr. King. If you think there were regular access from 
immigration attorneys to the USCIS supervisors?
    Mr. Cooper. Not necessarily supervisors but to the system. 
You know, as of right now there is an appeal, there is the 800 
number for the customer service number and there is the paper 
filing and none of those is an effective way of having an 
efficient exchange of the information----
    Mr. King. You may advocate for an open dialogue but then if 
there is direct access to a supervisor wouldn't that also mean 
taking it up the chain and trying to apply the leverage and the 
influence?
    Mr. Cooper. Yeah. I am not talking about leveraging 
influence with supervisors. I am just saying that if there were 
a better way for the agency to have access to information and 
arguments that could help it understand when it may have made a 
mistake, and I know this from experience inside the government, 
that can help you to avoid unnecessary litigation. It can help 
you to avoid unnecessary administrative appeals cost and it can 
lead to a lot of benefits for both sides.
    Mr. King. So you are speaking objectively and procedurally 
rather than from personal influence.
    Mr. Cooper. I am speaking from my experience inside the 
government and my observations since.
    Mr. King. Thank you, Mr. Cooper.
    Mr. Whetstone, I am sorry I didn't have time to get to you 
but I am sure you are the reason for the sharpest knives in the 
drawer. So I appreciate you coming here to testify and the 
service you have and I yield back the balance of my time.
    Mr. Gallegly. I thank the gentleman and----
    Ms. Lofgren. Mr. Chairman?
    Mr. Gallegly. Yes?
    Ms. Lofgren. May I ask unanimous consent to include in the 
record the denial rates showing a massive increase in denials 
between the Bush administration and the Obama administration?
    Mr. Gallegly. Without objection.
    [The information referred to follows:]
    
    
    
                               __________

    Mr. Gallegly. And I would ask unanimous consent to enter 
into the record a statement from the Senate Judiciary Committee 
Ranking Member Charles Grassley noting that the ``get to yes'' 
culture is a direct contradiction to our number-one priority of 
protecting the homeland and that undue pressure on adjudicators 
must be dealt with in order to ensure integrity and root out 
fraud in the immigration system; number two, the statement of 
John Lynch, a USCIS adjudicator in the San Diego field office 
whose personal experience validate the OIG findings that there 
is pressure of adjudicators to approve applications despite an 
adequate processing time or fraud indicators; and number three, 
an email chain between the USCIS officials stating that USCIS 
wants to get to the point where the cases denied are those that 
couldn't possibly be approved under the law.
    With that, I want to thank the--without objection. Hearing 
no objection, those requests will be added to the record of the 
hearing.
    [The information referred to follows:]
       Prepared Statement of the Honorable Charles E. Grassley, 
                 a U.S. Senator from the State of Iowa
    Congressional oversight is often an overlooked function for members 
of Congress. It's not always glamorous and it's a lot of hard work. 
However, it's an important responsibility for the Legislative Branch 
that helps our government work more efficiently for the American 
people.
    I commend the House Judiciary Committee for having a hearing today 
to discuss the shortcomings of our immigration benefits adjudication 
process. Oversight of this process is crucial to ensuring that our 
immigration system works for all people, including foreign nationals 
who wish to live and work in the United States.
    The Inspector General at the Department of Homeland Security issued 
a report in January of this year entitled, ``The Effects of USCIS 
Adjudication Procedures and Policies on Fraud Detection by Immigration 
Services Officers.'' The report provides an insightful look through the 
eyes of agents on the line. The Inspector General issued this report 
after I expressed concern about fraud detection efforts by U.S. 
Citizenship and Immigration Services.
    While I have long been interested in fraud prevention and rooting 
out abuse in many visa programs, I really dived into the benefits 
adjudication process in the fall of 2010. Immigration officers in the 
field reported to me that they were being subject to pressure to 
approve applications and petitions because that was the message of 
managers in headquarters. Many officers felt intimidated and pressured. 
Some were being relocated. Some were being demoted. The stories were 
similar, and it appeared that people in Washington were preaching a 
``get to yes'' philosophy when it was apparent that the answer should 
have been ``no.''
    In September of 2010, I wrote a letter to USCIS Director Mayorkas. 
I was unsatisfied with his response to issues that whistleblowers 
brought up to me. Since he refused to answer the allegations, I took 
the issue to the Secretary and the Inspector General. I told the 
Secretary that, after many interviews, the evidence suggested that 
Director Mayorkas was fostering an environment that pressures employees 
to approve as many applications as possible.
    According to several USCIS employees, Director Mayorkas was less 
concerned about fraud and more about making sure officers were looking 
at petitions from the perspective of the customer. Some said that USCIS 
leadership expressed a goal of ``zero complaints'' from ``customers,'' 
implying that approvals were the means to such an end. The Department 
of Homeland Security conducted a human capital survey where USCIS 
scored low because employees felt pressured by upper management to 
approve applications. Many said that USCIS leadership ``cultivated a 
culture of fear and disrespect.''
    So, the Inspector General agreed to investigate. He said that the 
``integrity of the benefit issuance process is vital,'' inappropriate 
pressure on the adjudications process must be avoided. Nearly 52% of 
respondents in their survey said that USCIS policy is too heavily 
weighted toward promoting immigration. The fact that a quarter of the 
immigration service officers surveyed felt pressure to approve 
questionable applications is alarming. There are all kinds of pressure, 
including from supervisors and outside attorneys. There's also pressure 
to approve in order to meet agency performance goals.
    It's no secret that USCIS officers have been judged on quantity, 
not quality of their work. For many years, adjudicators have felt 
pressure to approve so many cases in an hour or a day. Moreover, 
according to the Inspector General, 90 percent of respondents felt they 
didn't have sufficient time to complete interviews of those who seek 
benefits. The Inspector General said that ``the speed at which 
immigration service officers must process cases leaves ample 
opportunities for critical information to be overlooked.'' Adjudicators 
are more apt to approve a petition because it takes less time, and they 
fear getting behind if they have to put a lot of effort into a case.
    I applaud the Director for initiating new performance measures so 
that there's more focus on fraud and security. However, like the 
Inspector General noted, many employees will continue to feel as though 
their work hinges on numbers. Despite the new measures, immigration 
service officers and supervisors are concerned that production remains 
the focus. They feel this way because of ``the perception that USCIS 
strives to satisfy benefit requesters in a way that could affect 
national security and fraud detection priorities.'' The new performance 
measures may not be perfect. They may need to be massaged. I hope the 
Director takes comments of agents into consideration as this issue 
evolves.
    Unfortunately, however, I am concerned that the agency is not 
taking seriously the Inspector General's recommendation to develop 
standards to permit more time for review of case files. In fact, USCIS 
did not concur with this recommendation and said that additional time 
is not the solution to addressing national security and fraud concerns. 
Director Mayorkas should reconsider the department's initial response 
to this recommendation and create an environment that ensures a 
thorough and complete analysis of all applications.
    The Inspector General also recommended that USCIS develop a policy 
to establish limitations for managers and attorneys when they intervene 
in the adjudication of specific cases. This recommendation was made 
because it appeared that certain high-ranking employees at USCIS 
headquarters were inserting themselves into specific cases, and in one 
case, putting pressure on adjudicators to approve an application when 
the individual clearly wasn't eligible. The report also discusses how 
private attorneys and other parties contacted USCIS managers or 
attorneys to request a review of a case that an immigration service 
officer had denied. The perception for many officers was that outside 
attorneys had too much influence in the process. While the Director of 
USCIS does not support special treatment for complainants, it's 
concerning that the agency did not fully concur with the recommendation 
to issue a policy that ends any informal appeals process and the 
special review of denied cases.
    Overall, this report is eye-opening. The Inspector General 
discussed the adjudications process with many officers in the field, 
and brought these issues to light. He made many thoughtful and serious 
recommendations that should not be ignored.
    Unfortunately, despite what the Inspector General has reported, 
there are still nay-sayers. People within the agency want to discredit 
the research and findings of the Inspector General. I'm told that some 
aren't taking this report seriously. That's why leadership on this 
issue is crucial to enacting any true reform.
    In 2008, I was glad to hear the president-elect talk about making 
this the most transparent government ever. Unfortunately, up to this 
point, this administration has been far from transparent.
    And, it's clear that for the current administration, the rule of 
law is more about perception than reality. They've circled the wagons, 
made denials and generally been non-responsive to constitutionally 
proper inquiries by members of Congress.
    Since the founding of our country, our immigration laws have been a 
source of discussion. We were born a nation of immigrants. We have 
welcomed men and women of diverse countries and provided protection to 
many who flee from persecution.
    We have been a generous nation. Yet, we have seen our country face 
many challenges. During these struggles, it is important for lawmakers 
to bear in mind that the policies we make should benefit our country 
over the long term and that we must be fair to current and future 
generations.
    People in foreign lands yearn to be free. They go to great lengths 
to be a part of the United States. It's a privilege that people love 
our country and want to become Americans. At the same time, however, we 
must not forget one great principle that our country was founded on. 
That is the rule of law. We want to welcome new Americans, but we need 
to live by the rules that we've made. We cannot let our welcome mat be 
trampled on and we cannot allow our system of laws to be undermined.
    For years, USCIS has seen themselves as a service-oriented agency. 
They strive to make their customers happy. Unfortunately, this ``get to 
yes'' culture is a direct contradiction to our number one priority of 
protecting the homeland. USCIS must do more to ensure that fraud, 
abuse, and national security are a higher priority than appeasing its 
customers. It is going to take a strong-willed and determined leader to 
change this culture.
    Reform shouldn't be a bad word. It should be embraced so that 
immigrants continue to feel welcomed in America and receive the best 
service possible when trying to navigate the bureaucratic process.
    Again, I commend the committee for discussing the integrity of our 
immigration system, including our benefits adjudication process. With 
constant vigilance, we can root out fraud and abuse, and enact reforms 
that will be meaningful for future generations of new immigrants.
                               __________

                    Prepared Statement of John Lynch
    Mr. Lynch's Background:
    John Lynch serves as an Immigration Services Officer or ``ISO'' 
(adjudications officer) at the San Diego Field Office of USCIS. Mr. 
Lynch received his bachelors degree from the University of California 
at Berkeley and his Masters Degree in Business Administration from San 
Francisco State University. In addition to receiving his undergraduate 
degree, Mr. Lynch also was a Distinguished Military Graduate. In 
between his undergraduate and Graduate Degrees, Mr. Lynch served as an 
Army Intelligence Officer, providing daily intelligence briefings and 
analysis on Russian military and economic assistance to North Vietnam 
and troop strength along the Russian/Chinese Border. Mr. Lynch 
personally briefed Senator McCain's father, Admiral Mc Cain, and House 
of Representatives Armed Services Committee Chairman Sonny Montgomery, 
when Senator McCain was a Prisoner of War in Hanoi, North Vietnam 
during that war. After completing his military Service, Mr. Lynch 
worked for three Fortune ranked companies: IBM, Bank of America, and 
General Electric in Corporate Finance positions before returning to 
government service with USCIS in 2003. Mr. Lynch has served as an 
adjudicator for the past ten years in Southern California, working in 
the Los Angeles, Santa Ana, and San Diego Field Offices. He also worked 
as an Asylum Officer at the Los Angeles Asylum Office for 18 months, 
and briefly at the California Service Center, as a Center Adjudications 
Officer. In addition to his Immigration Officer duties, Mr. Lynch 
coordinated and emceed the largest military naturalization ceremony 
aboard the USS Midway in San Diego on July 2, 2010. He also serves as 
Vice President of the AFGE ICE Local in San Diego, representing 
adjudicators from that District.
    The Inspector General of the Department of Homeland Security issued 
a report on adjudications on January 5, 2012. This report comments on 
the pressure by management for adjudicators to decide or ``rubber 
stamp'' applications for permanent resident status (green cards) and 
naturalization. This report also recommends that adjudicators be given 
more time to review files prior to conducting an interview. The 
adjudications conducted in the field are always face-to-face meetings, 
whereas the adjudications conducted at the Service Centers are paper or 
``non-interview'' decisions. If the adjudicators at the Service Centers 
determine from a file that more information is warranted, they will 
send a request for information ``RFE'' or send the file to a Field 
Office for a personal interview.
    While it is true that there is tremendous pressure on adjudicators 
to approve applications, the report does not mention the threat that 
adjudicators face that a file one day could land on the Region''s 120-
day aging report (date of filing to decision) that is the prime 
motivator supervisors and field office directors use to push 
Adjudicators to a decision. Furthermore, any file that ages to this 
report is then reported to District and Region management with the 
reason why the file is still with the adjudicator.
    Another accelerant for adjudicators to approve applications is the 
quarterly audit. Supervisors pressure adjudicators normally after the 
first interview to make a decision on an application. Typically these 
are applications where the adjudicator may find that something is not 
right after the interview, unusual travel patterns overseas, a lookout 
posted by another agency, or the fact that the applicant's 
``lifestyle'' is not supported by their income, in these cases, more 
analysis is need prior to a decision.
    To speed up the process even more, a greater emphasis today Is 
placed on the reliance on negative FBI name checks and negative 
fingerprint results to speed an approval. so the actual interview time 
is reduced further due to required computer entries to speed files 
along. In actuality, this limited time reduces the actual ``talk'' time 
with the applicant. So in the case of naturalization, the face time is 
usually taken up with testing on English and Civics tests and 
confirming '' yes or no'' questions on the applications they have long 
prepared to answer. Little time is dedicated to actually finding out 
why the applicant wishes adjust status or naturalize. Adjustment of 
Status interviews are harder because the applicant usually has been in 
the country for a very short time, many times less than six months, so 
there is no established track record of the applicant's residence in 
the United States file to help guide the adjudicator's decision. In 
high volume countries such as China, tourist visa interviews usually 
last usually less than 5 minutes so there is added pressure on the 
adjudicator to make a quick decision on the application. Many tourists 
apply to change their status or remain a long-term overstay before 
requesting to change their status.
    The adjudicators take their jobs seriously and are perhaps one of 
the hardest working groups I have seen both in and out of the 
government! But, every day that they come to work, it becomes a game of 
``Beat the clock'', there is little margin for error. Any experienced 
adjudicator will tell you that if an adjudicator needs more time with 
an applicant to make a decision, the supervisors make it difficult to 
do so because they may either be in a meeting and unavailable, or the 
scheduling is so tight to meet production standards, that there is no 
one else to give the next file too, so the adjudicator falls behind, 
and it perpetuates itself throughout the day as it delays all the other 
remaining interviews in that adjudicators docket. This happens far more 
frequently than the agency is willing to admit.
    As previously stated, there is great pressure on adjudicators to 
approve cases and this is further compounded by the number of files 
assigned to an adjudicator per day to meet production standards. There 
is no better example of this than where I work in the San Diego 
District. This District has three field offices: San Diego, Chula 
Vista, and Imperial. For months now, due to the increasing national 
administrative requirements and more local requirements that are 
dictated in processing files, I have repeatedly asked management to 
reduce our daily docket load to create more time for the adjudicators 
to complete their work. This pressure is even more acute when 
processing green card interviews. Instead of helping to resolve the 
problem, management only adds to it. We have complained about this 
problem in Town Hall meetings, labor management meetings, and even 
after training courses, that it is impossible to keep up the aggressive 
interview pace, but since management is paid on production, it's a 
topic they are not willing to resolve because such as resolution would 
ultimately come out of their pocket. Management usually prefers to 
delay the decision by asking the Union to send management a 
``proposal'' that is only ignored, and the stress continues. With the 
increasing volume of cases in daily dockets and added computer entries, 
we have adjudicators experiencing increased health problems because 
management will not provide any relief.
    When we became aware that the IG had recently completed its report, 
we decided to gather reliable information from our other Southern 
California Field Offices, see Exhibit A,*** and the feedback was 
startling. Despite all our calls for relief, we learned that our San 
Diego field office adjudicators are assigned the highest number of 
cases per shift in all of Southern California. I immediately filed a 
grievance on February 2, 2012, and just last Thursday, prior to my 
departure for Washington, I was 
handed a letter indicating that our request for a reduced daily docket 
was denied and management's response did not even address the issue, 
but only the form in which our request was submitted. But I also 
learned In its denial that management cannot even read the dates that 
appeared in my letter correctly, that the form number we used for our 
submittal was incorrect (this is not so because there is no such form 
CIS-827, it was only a placeholder that management and labor used until 
contract discussions were completed. The correct form is G-1162 and was 
the form submitted. But best of all, the agency's denial was based not 
on the substance of the report, but only about the form of submission, 
and that was how it was decided. (See Exhibit A.)
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    ***The material referred to, Exhibit A, was not received by the 
Subcommittee.
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    In conclusion, I leave it to the subcommittee to draw its own 
conclusion, based on the testimony presented, if adjudicators are being 
dealt with fairly by management in conducting interviews and that all 
the appropriate steps have been taken to guard against National 
Security threats and that benefit fraud can be an kept to a minimum.
                               __________

                               
                               
                               __________
    Mr. Gallegly. I want to thank our two witnesses and, in 
fact, all of our witnesses. I think that this has been a 
productive hearing and without objection all Members will have 
5 legislative days to submit to the Chair additional written 
questions for the witnesses which will be forwarded and ask 
that the witnesses to respond as promptly as they can so the 
answers will be made a part of the record of the hearing, and 
without objection all Members have 5 legislative days to submit 
any additional materials for inclusion in the record.
    Again, I want to thank the witnesses and thank the Members 
of the Committee. And with that, the Subcommittee stands 
adjourned.
    [Whereupon, at 4:38 p.m., the Subcommittee was adjourned.]

                                 
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