[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
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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.
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*The rate includes fraud and technical violations.
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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.**
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**The information requested was received by the Subcommittee but is
not being included in the printed hearing record.
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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.)
---------------------------------------------------------------------------
***The material referred to, Exhibit A, was not received by the
Subcommittee.
---------------------------------------------------------------------------
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.]