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FAMILIES AND BUSINESSES IN LIMBO: THE DETRIMENTAL IMPACT OF THE IMMIGRATION BACKLOG
WEDNESDAY, JUNE 23, 2004
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4:50 p.m., in Room 2141, Rayburn House Office Building, Hon. John Hostettler (Chair of the Subcommittee) presiding.
Mr. HOSTETTLER. The Subcommittee will come to order.
Vania Carvalho contacted my office with the kind of problem I hear all too often—about someone who is trying to do the right thing and follow the law by filing the right papers, and getting caught in a bureaucratic nightmare. Vania came to the U.S. with her mother when she was 13 years old on a Portuguese passport, but when her mother married someone from my district, her family filed I–130 papers in February 2001 so she could become a permanent resident. She is still waiting for her green card.
This is why 2 years ago Congress created the Office of the Ombudsman in the Homeland Security Act—to make sure that someone is fighting to ensure that U.S. Citizenship and Immigration Services process immigration applications in a timely and fair manner.
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As Members of this Committee mentioned at last week's hearing, legal immigration processing delays send the wrong message to everyone, especially when we are trying to combat illegal immigration. According to Congressional Research Service, 7.8 million immigration and naturalization applications were received in 2001, up from 5.9 million in 2000. The annual receipts since the 9/11 tragedy have stayed in the 7 million range. In the year since its creation, USCIS has begun to report progress in reducing the backlog. It is reported that 5.1 million immigration cases were pending in April 2003, and a year later, this April, the number was reduced to 4.8 million.
Last week, this Subcommittee received the USCIS's blueprint for further reducing the application backlog so all applications meet the President's target of a 6-month cycle by fiscal year 2006. No one wants USCIS to succeed more than the Members of this Subcommittee.
This week we will hear the DHS Ombudsman provide his reaction to USCIS's plan and his own ideas on backlog reduction. Further, we will hear from private sector attorneys representing both family and business clients on what they think of the plan and provide further suggestions on how to get the job done and reduce the backlog.
But before that, I have one observation from last week's hearing: For one, despite the difficulties of a large-scale merger comparable to joining together the largest corporations of America, it is apparent that USCIS is cutting into the application backlog created by its predecessor agency. In fact, I am happy to have received word it has reduced the immigration backlog by hundreds of thousands of petitions since the beginning of the year.
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Although USCIS is a better and more efficient organization than its predecessor agency, it has inherited a backlog that has grown with each new immigration program passed by Congress, including the Nicaraguan and Central American Relief Act of 1997, the Haitian Refugee and Immigrant Fairness Act of 1998, the American Competitiveness and Workforce Improvement Act of 1998, and a similar law in 2000—both dramatically increased H–1B caps—and the LIFE Act of 2000, which provided for new and V and K visa categories, and multiple extensions of 245(i).
Another issue I was also interested to hear about was broached by our witness last week, USCIS Director Aguirre. He believed that fraudulent or bogus petitions were adding significantly to the backlog, and that immigration attorneys used bogus petitions to delay removals. Director Aguirre stated that USCIS is developing technology to inhibit such behavior.
His testimony also noted that the tragic events of September 11, 2001 forced USCIS to commit significant additional resources to national security checks on applicants. I am glad to hear that security concerns remain a top priority for USCIS when I hear of cases like that of Nuradin Abdi, who was charged last week with plotting to bomb a shopping mall in Columbus, Ohio, and with receiving asylum through a bogus but successful application.
The quarterly progress reports that USCIS has promised this Committee will ensure that we have an accurate picture of the Agency's progress in attacking the backlog. I am anxious to hear what ideas our witnesses have to reduce the backlog further.
Without objection, all Members' opening statements will be entered into the record, and the Chairman will reserve the right to recognize the Ranking Member for an opening statement when she arrives.
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Without further delay, I want to introduce our witnesses today.
The Honorable Prakash Khatri was appointed by Secretary Tom Ridge in July 2003 to serve as the first U.S. Citizenship and Immigration Services Ombudsman at the Department of Homeland Security. He has extensive experience in the area of immigration law, having spent the past 20 years representing individuals and companies in immigration proceedings and related matters. In his 5 years as manager of immigration and visa processing for Walt Disney World in Florida, Mr. Khatri traveled to U.S. consular posts in more than 18 countries. At Disney, he developed and implemented an automated, high-volume visa processing system and other innovations that reduced unnecessary paperwork and improved efficiencies relating to handling employee visa applications.
Mr. Khatri was admitted to the Florida State bar in 1984 and at the age of 22 was the youngest attorney in the State bar's history. He earned his bachelor's and juris doctor degrees from Stetson University.
Elizabeth Stern is managing partner of the Business Immigration Practice Group at Shaw Pittman, LLC. She represents clients in a variety of industry sectors in midsized businesses to Fortune 500 companies. Ms. Stern has previously testified before this Committee in 2001 on the restructuring of the Immigration and Naturalization Service.
Ms. Stern was selected as one of the 75 best lawyers in the District of Columbia by Washingtonian Magazine. She is also a board member of the Bar Association of the District of Columbia.
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Ms. Stern graduated from the University of Virginia with juris doctor and bachelor degrees.
Paul Zulkie is the president of the American Immigration Lawyers Association. He is the author of Immigration Compliance in Employment and Business, which analyzes employer sanctions, enforcement and business-related visa issues. In addition, he is a regular lecturer at national legal education seminars and has published several articles in nationally distributed publications. He has been named a leading practitioner in the field of immigration law by The Best Lawyers in America. Mr. Zulkie is a 1977 graduate of the University of Illinois College of Law.
At this time before, we begin testimony, it is the practice of this Committee to administer the oath to all witnesses. Will you please stand and raise your right hand.
[Witnesses sworn.]
Mr. HOSTETTLER. Please let the record reflect that the witnesses responded in the affirmative.
Before the Chair recognizes Mr. Khatri for 5 minutes, I would like to recognize the fact that Mr. Khatri's family is here, and if they would like to stand, we would be glad to recognize them so you can be thoroughly embarrassed. Thank you for being here. Thank you for all your service.
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Also we would like to note for the record that his report came to Congress one week earlier than required by statute, which is very good for Government work.
Mr. Khatri, you now have 5 minutes for an opening statement.
TESTIMONY OF THE HONORABLE PRAKASH KHATRI, CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. KHATRI. Thank you, Mr. Chairman. Good afternoon, Congressman King and Congresswoman Lofgren. My name is Prakash Khatri, and I have the honor of serving as the first Citizenship and Immigration Services Ombudsman at the United States Department of Homeland Security.
As a naturalized citizen myself, I have a deep appreciation for this Nation's immigration history. I believe that the United States still represents the ''golden door'' for people around the world who share the American dream and who want to contribute to the cultural richness and economic strength of this country. I am truly honored to serve as the first Citizenship and Immigration Services Ombudsman and to have the opportunity to repay a small amount of the priceless gift that immigration has been to my family and me.
Since my appointment on July 28, 2003, I have worked closely with my fellow leaders at the Department of Homeland Security in identifying opportunities for recommending meaningful changes to the existing immigration services system. I have been encouraged in these efforts by the commitment of Secretary Tom Ridge and Deputy Secretary Jim Loy to solve many of the problems that have plagued the legal immigration system. In addition, I have worked with my colleagues at U.S. Citizenship and Immigration Services, USCIS, and they have embarked on a series of pilot programs to test some of the recommendations made by my office.
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Before I go into detail about these recommendations, let me step back a moment and discuss the mission of my office. We have three primary functions as outlined in section 452 of the Homeland Security Act of 2002. First, the Ombudsman's Office assists individuals and employers in resolving problems with USCIS. In addition, we identify areas where individuals and employers are having problems in dealing with USCIS with an eye toward developing systemic changes that will benefit citizens and immigrants across the board. Finally, we propose changes in the administrative practices of USCIS in an effort to avoid and mitigate problems and hopefully to eliminate them once and for all.
In fulfilling the statutory mandate, I am committed to keeping an open mind with respect to innovative solutions, and I will not accept the status quo. The recommendations from my office will promote national security and the integrity of the legal immigration system; they will increase efficiencies in administering citizenship and immigration services; and they will primarily focus on welcoming immigrants while reducing the problems encountered by individuals and employers seeking legal benefits under our laws.
I approach this task in a holistic manner, identifying opportunities broadly, while assigning priorities in order to maximize significant, short-term results. In the first 10 months of my tenure, I have focused my efforts and recommendations primarily on changes to existing policies and procedures rather than on recommending new regulatory or statutory solutions. This approach has resulted in the rapid implementation by USCIS of pilot programs aimed at immediate and dramatic benefits. In the upcoming year, I will introduce additional recommendations of this nature, but will increasingly focus on formulating broader recommendations that will require more time-intensive regulatory, statutory and/or infrastructure modifications.
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Let me outline the most pervasive and significant issues which I have identified to date: First, prolonged processing times or backlogs; second, limited availability of case status information to applicants and beneficiaries; third, immigration benefit fraud, which contributes to processing delays; fourth, insufficient standardization in processing among the different USCIS district offices and regional service centers; and last, inadequate technology and facilities.
Of the issues identified, clearly the most pervasive problem faced by USCIS is the prolonged processing times or backlogs. In the first few weeks I quickly realized that two-thirds of the volume of work generated from the six fee-based forms used in three key processes. Thus, I focused on these three areas, and I recommended three specific initiatives designed first to streamline family-based immigrant processing; second, to reengineer the green card replacement process; and three, to streamline employment-based immigrant processing.
I discussed these recommendations in depth in my first annual report to Congress, copies of which have been provided to the Subcommittee and have been submitted as my written testimony for the record.
In response to these recommendations from my office, USCIS has developed and implemented four corresponding pilot programs. My office is committed to monitoring these new programs to determine their effectiveness at solving the underlying problems, and we hope that the positive new practices can be expanded quickly to improve immigration services nationwide.
I would like to highlight one particular new and innovative pilot project being tested by USCIS in Dallas. The current process of adjudicating applications for green cards for immediate relatives of U.S. citizens is undergoing a dramatic transformation. The pilot project is testing one of my recommendations whereby a process that currently takes from 4 months in some jurisdictions to 3 or more years in others now will take less than 75 days from application to receipt of a green card.
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This is quite significant. This will be accomplished in a way that will not only enhance security by reducing fraud, ineligible applicants and temporary interim documents, it will also increase efficiency by reducing the amount of time from a few hours of processing in some jurisdictions because of the extended backlogs to as little as 1 hour of processing time.
This is highly significant. It will dramatically increase customer service by reducing the waiting times and virtually eliminating all applications for interim benefits. This will be a substantial savings for many applicants. For many of these applicants, this program could result in lower total fees because many applicants would no longer have to pay for interim benefit applications such as employment authorization or travel permits.
The pilot program began in May, and we expect that as we celebrate our Independence Day on July 4 in a little over a week, the first immigrants will start receiving their green cards under this new program in Dallas. It is the commitment of Secretary Ridge and Deputy Secretary Loy to backlog reduction and the true spirit of cooperation exhibited by USCIS that needs to be recognized for this effort.
In addition to developing recommendations and preparing the first annual report to Congress, I faced the challenge of establishing a brand new office and laying the groundwork for its effectiveness in the future. After identifying office space, hiring and training our initial staff, our office created an information collection and processing system in the Ombudsman's Office. This system will provide automated data collection and tracking of customer complaints and concerns, allowing for more efficient identification of the systemic changes needed for the efficient and secure delivery of immigration services.
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I have devoted a substantial amount of time to meeting with key stakeholders. I have visited over 20 USCIS facilities around the country, encouraging input from local managers and staff. I have also met with a wide variety of nongovernmental stakeholders, including individuals, community-based organizations, business leaders, immigration advocates, and members of the bar.
Over the last 10 months as Ombudsman, I have kept in mind the sentiments of President Bush when he said ''as a Nation that values immigration and depends on it, we should have immigration laws that work and make us proud.'' Although considerable progress has been made to that end during the course of the last year, much remains to be done. Continued diligence is required on the part of my office and USCIS. Our shared goal is the creation of a more efficient, secure and responsive method for providing immigration services that respect the dignity and value of individuals while simultaneously protecting us against those who seek to do us harm.
This concludes my prepared remarks. I thank you for the invitation to testify before this Subcommittee, and I would be happy to answer any questions. I also would like to thank Congresswoman Jackson Lee, the Ranking Member.
Mr. HOSTETTLER. Thank you, Mr. Khatri.
[The prepared statement of Mr. Khatri follows:]
PREPARED STATEMENT OF PRAKASH KHATRI
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Good afternoon Chairman Hostettler, Ranking Member Jackson Lee, and Members of the Subcommittee. My name is Prakash Khatri, and I have the honor of serving as the first Citizenship and Immigration Services Ombudsman at the United States Department of Homeland Security.
As a naturalized citizen myself, I have a deep appreciation for this nation's immigration history. I believe that the United States still represents the ''golden door'' for people around the world who share the American Dream and who want to contribute to the cultural richness and economic strength of this country. I am truly honored to serve as the first Citizenship and Immigration Services Ombudsman and to have the opportunity to repay a small amount of the priceless gift that immigration has been to my family and me.
Since my appointment on July 28, 2003, I have worked closely with my fellow leaders at the Department of Homeland Security—DHS—in identifying opportunities for recommending meaningful changes to the existing immigration services system. I have been encouraged in these efforts by the commitment of Secretary Tom Ridge and Deputy Secretary Jim Loy to solve many of the problems that have plagued the legal immigration system. In addition, I have worked with my colleagues at U.S. Citizenship and Immigration Services, and they have embarked on a series of pilot programs to test some of the recommendations made by my office.
Before I go into more detail about these recommendations, let me step back a moment and discuss the mission of my office. We have three primary functions, outlined in Section 452 of the Homeland Security Act of 2002.
First, the Ombudsman's office assists individuals and employers in resolving problems with USCIS—that is, U.S. Citizenship and Immigration Services.
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In addition, we identify areas where individuals and employers are having problems in dealing with USCIS, with an eye towards developing systemic changes that will benefit citizens and immigrants across the board.
And finally, we propose changes in the administrative practices of USCIS in an effort to avoid and mitigate problems.
In fulfilling this statutory mandate, I am committed to keeping an open mind with respect to innovative solutions, and I will not accept the status quo. The recommendations from my office will promote national security and the integrity of the legal immigration system; they will increase efficiencies in administering citizenship and immigration services; and they will primarily focus on welcoming immigrants while reducing the problems encountered by individuals and employers seeking legal benefits under our laws.
I approach this task in a holistic manner, identifying opportunities broadly, while assigning priorities in order to maximize significant, short-term results. In the first 10 months of my tenure, I have focused my efforts and recommendations primarily on changes to existing policies and procedures rather than on recommending new regulatory or statutory solutions. This approach has resulted in the rapid implementation by USCIS of pilot programs aimed at immediate and dramatic benefits. In the upcoming year, I will introduce additional recommendations of this nature, but will increasingly focus on formulating broader recommendations that will require more time-intensive regulatory, statutory and/or infrastructure modifications and thus must be able to be implemented within the budgetary resources of USCIS.
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Let me outline the most pervasive and significant issues that I have identified to date:
prolonged processing times;
limited availability of case status information to applicants and beneficiaries;
immigration benefit fraud, which contributes to processing delays;
insufficient standardization in processing among the different USCIS district offices and regional service centers; and
inadequate technology and facilities.
Of the issues identified, clearly the most pervasive problem faced by USCIS is the prolonged processing times or ''backlogs.'' In the first few weeks, I quickly realized that two-thirds of the volume of work is generated from the six fee-based forms used in three key processes. Thus I focused on these three areas and I recommended three specific initiatives designed to 1) streamline family-based immigrant processing, 2) reengineer the ''green card'' replacement process, and 3) streamline employment-based immigrant processing.
I discuss these recommendations in depth in my first annual report to Congress, copies of which have been provided to this subcommittee and have been submitted as my written testimony for the record.
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In response to these recommendations from my office, USCIS has developed and implemented four corresponding pilot programs. My office is committed to monitoring these new programs to determine their effectiveness at solving the underlying problems, and we hope that the positive new practices can be expanded quickly to improve immigration services nationwide. I would like to highlight one particular new and innovative pilot project being tested by USCIS in Dallas. The current process of adjudicating applications for ''green cards'' for immediate relatives of United States Citizens is undergoing a dramatic transformation. The pilot project is testing one of my recommendations whereby a process that currently takes from four months in some jurisdictions to as much as three or more years in others, now will take less than 75 days from application to receipt of a ''green card.'' This will be accomplished in a way that will:
enhance security by reducing fraud, ineligible applicants and temporary interim documents,
increase efficiency by reducing the amount of time from a few hours of processing in some jurisdictions to as little as one hour of processing time, and
dramatically increase customer service by reducing the waiting times and virtually eliminating applications for interim benefits. For many applicants, this program could result in lower total fees because many applicants would no longer have to pay for interim benefit applications such as employment authorization or travel permits.
The pilot program began in May and we expect that as we celebrate our Independence Day in a little over a week, the first immigrants will start receiving their green cards under this new program in Dallas. It is the commitment of Secretary Ridge, Deputy Secretary Loy to backlog reduction and the true spirit of cooperation exhibited by USCIS that needs to be recognized for this effort.
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In addition to developing recommendations and preparing the first annual report to Congress, I faced the challenge of establishing a brand new office and laying the groundwork for its effectiveness in the future. After identifying office space, hiring, and training our initial staff, our office created an information collection and processing system in the Ombudsman's office. This system will provide automated data collection and tracking of customer complaints and concerns, allowing for more efficient identification of the systemic changes needed for the efficient and secure delivery of immigration services.
I have also devoted a substantial amount of time to meeting with key stakeholders. I have visited over 20 USCIS facilities around the country, encouraging input from local managers and staff. I have also met with a wide variety of non-governmental stakeholders, including individuals, community-based organizations, business leaders, immigration advocates, and members of the bar.
During my tenure as CIS Ombudsman over the last 10 months, I have kept in mind the sentiments of President Bush when he said ''[a]s a nation that values immigration and depends on it, we should have immigration laws that work and make us proud.'' Although considerable progress has been made to that end during the course of the last year, much remains to be done. Continued diligence is required on the part of my office and USCIS. Our shared goal is the creation of more efficient, secure and responsive methods for providing immigration services that respect the dignity and value of individuals while simultaneously protecting us against those who seek to do us harm.
This concludes my prepared remarks. I thank you for the invitation to testify before this subcommittee, and I would be happy to answer any questions.
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Mr. HOSTETTLER. The Chair recognizes Ms. Stern for the purpose of an opening statement.
TESTIMONY OF ELIZABETH STERN, MANAGING PARTNER, BUSINESS IMMIGRATION PRACTICE GROUP, SHAW PITTMAN, LLC
Ms. STERN. Mr. Chairman, distinguished Members, last week before this Subcommittee, Director Aguirre introduced the backlog elimination plan, indicating that USCIS has at last crested the peak and expressing the Agency's commitment to attain a realistic time frame for immigration processing. I believe the plan is excellent, and focus my remarks today on building from this proposal and adding a commercial perspective.
The underlying problem is that the current time frames are completely devoid from the reality of the users' needs. In the business sector, we see many examples of the debilitating impact of these delays. A recent study by eight renowned associations indicate that visa delays alone are responsible for some $31 billion in lost dollars to U.S. businesses.
For backlog reduction to succeed, USCIS must infuse a commercially driven approach to the effort. As detailed in my statement, five key areas are essential: a clear mission with unambiguous adjudication standards; an effective communication and training program; application of IT and risk management to streamline processes; and uncompromising commitment to quality assurance and proper resource allocation.
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The mission is now clear; the ambiguity lingers in the Agency's adjudication criteria. In recent years the field has increasingly implemented inconsistent standards. Companies and families have been subjected to RFEs requesting proof that is not required by the statute or the regulations.
Similarly troubling is the reliance on external sources for interpretation. Some field offices have routinely used Webster's dictionary to augment their definition of key standards. To fill the void, the Agency must establish explicit and transparent parameters for each immigration category. These national standards must then be communicated and enforced throughout the management chain and in all field offices. USCIS staff must be trained on all categories and have electronic access to relevant guidance. Intra-agency communications and training are vital to counter the ''deer in the headlights'' syndrome that the field has exhibited since 9/11.
Only with ongoing and specific direction from the Agency's leadership and from the Ombudsman can this negative outlook be transformed so that the field can successfully surmount bureaucratic inefficiency and a daunting backlog.
External communications are equally necessary. The Agency's user database should be dynamic with usable milestone tracking as opposed to formalistic references to data processing times. E-mail communications of official decisions should augment paper notices in all cases, not just when a premium processing fee is paid.
In addition, the adjudication process must be reengineered to reduce cycle time while maximizing accuracy. Managers should perform basic triage by determining if incoming petitions warrant intensive scrutiny, or if the case should be handled more routinely.
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IT enhancement is unquestionably a part of the solution. There is no reason why the Agency cannot maintain the type of smart software that allows express couriers like FedEx or DHL to track packages as they move point to point in the delivery process.
Furthermore, it is crucial to achieve quality control. Top-down management techniques, firm lines of authority, and clear allocation of responsibility are essential at each level in the Agency. Consistent adjudication must be the norm with required reporting to headquarters when backlogs exceed the stated time lines.
Measurable progress will reduce the need for the Agency to rely on the Agency's $1,000 premium processing fee, so this becomes a supplement, not a surrogate for timely processing.
And end-product review, an action item in the Agency's plan, is critical to ensure the field adjudicates cases fairly. Finally, as new immigration programs are launched, an analysis of whether current resources suffice to meet new demands is essential. Both HR and budgetary allocations must be addressed in advance.
In conclusion, our diversity has been the very lifeblood of this country. We must be conscious of the fact that the United States does not exercise a monopoly on the best and the brightest. We are already losing talent to our neighbors abroad. The commitment of Congress and the Administration to eliminating the backlog is essential to stem that tide. The Agency's plan recognizes that our country's immigration policy encompasses two overarching principles, facilitating entry of the eligible, and barring entry to those who pose a threat to our populace. Those two goals are inextricably linked. Security and service are components of the same machine. Neither can function unless the other one is working properly.
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Bottom line, if we do not advance service, we cannot advance security. The former INS was dismantled to launch a separate agency fully dedicated to service. USCIS was empowered by Congress and the President to confirm America's promise to foreign nationals seeking residency and citizenship within our borders. A commercial goals-oriented approach is essential to success. With pragmatism, the goal articulated by Director Aguirre last week, ''to provide the right benefit to the right person in the right amount of time,'' is attainable. I thank you.
Mr. HOSTETTLER. Thank you, Ms. Stern.
[The prepared statement of Ms. Stern follows:]
PREPARED STATEMENT OF ELIZABETH ESPIN STERN
Stern1.eps
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Mr. HOSTETTLER. The Chair recognizes Mr. Zulkie for an opening statement.
TESTIMONY OF PAUL ZULKIE, PRESIDENT, AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Mr. ZULKIE. Thank you, Mr. Chairman and distinguished Members of the Subcommittee.
I am Paul Zulkie, president of the American Immigration Lawyers Association, and I am honored to be here today representing AILA at this hearing. AILA is an immigration bar association of more than 8,000 attorneys who practice immigration law. The association applauds this Committee's interest in the effects of backlogs and your understanding of their importance.
Through no fault of their own, families remain separated, businesses cannot acquire the workers they need, and doctors with life-saving skills are stranded abroad. My written testimony contains numerous examples of how United States citizens, families, and American businesses have been hurt by these backlogs. I would like to highlight two of these cases for you this afternoon.
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A woman from Rwanda who witnessed the torture and killing of her parents and siblings applied for asylum 7 years ago and has yet to be so much as scheduled for an interview. She suffers from post-traumatic stress disorder and lives in constant fear of being sent back to her native country. She was brought here from a refugee camp by a trafficker who attempted to enslave her into prostitution, but because she never received an interview and has been uncertain of her future here, she never went to the police with information about this sex trafficker. The evidence is now lost, and this perpetrator is still at large.
A second example, one of the top 10 U.S. medical centers had to lay off one of its best surgeons because USCIS was taking 5 months to renew his work authorization card even though the Agency's own regulations require that these cards be processed within 90 days. The hospital, the surgeon, and his patients all suffered from his forced unavailability.
These backlogs impact real people, real businesses. No one is immune. This is why the search for a solution must include an honest assessment of the magnitude of the problem as well as the remedies proposed by USCIS.
Let me begin with our definition of backlogs. The time that a case spends on the shelf with no review by an adjudicator is what we would term the ''primary backlog,'' but there is also a ''secondary,'' a hidden backlog.
A case becomes part of the secondary backlog when a security agency simply fails to respond to USCIS in a timely manner or when an adjudicator requests additional evidence. Any meaningful backlog reduction plan must address the secondary backlogs as well. AILA welcomes the efforts of Ombudsman Khatri to develop creative new approaches to the processing of benefit applications, and we do look forward to working with him in the future.
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Unfortunately, not all recent USCIS initiatives have served to decrease the backlogs. In fact, some have been setbacks. USCIS recently announced a new initiative called Decision At First Review, addressing the proliferation of complex demands for documentation issued by its own personnel. Frequently, the documentation requested was already provided, was not relevant to the application at hand, or was necessitated by the sheer length of time the application has sat on the shelf. The new Agency guidance encourages summary denials of the application in lieu of request for documentation. This does, in our opinion, no more than shift parts of the primary backlog from where it is counted to an office where it will not be counted, the Administrative Appeals Office. That is not backlog reduction, that is hiding the backlog.
Mr. Chairman, AILA believes the time has come to acknowledge the 800-pound gorilla in the room. No matter how many initiatives and innovations USCIS undertakes, in the end it is all about resources. The Administration believes that with a little more ingenuity and a little better management, the backlogs can be brought under control. This Agency needs more money to do its job, and the funding needs to come from direct congressional appropriations, not increased user fees.
A myth has developed that immigration processing should be entirely funded by filing fees. The truth is fee-based funding is nothing more than a giant Government-endorsed pyramid scheme always on the brink of collapsing under its own weight. The Agency is in the constant situation of using new filing fees to pay for the adjudication of applications filed in previous years.
In conclusion, Mr. Chairman, AILA believes that a fresh look should be taken at what resources are really needed, and that money be authorized and appropriated by Congress to do the job right. Thank you.
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Mr. HOSTETTLER. Thank you, Mr. Zulkie.
[The prepared statement of Mr. Zulkie follows:]
PREPARED STATEMENT OF PAUL ZULKIE
Mr. Chairman and distinguished Members of the Subcommittee, I am Paul Zulkie, President of the American Immigration Lawyers Association (AILA). I am honored to be here today representing AILA to testify on ''Families and Businesses in Limbo: the Detrimental Impact of the Immigration Backlog.''
AILA is the immigration bar association of more than 8,000 attorneys who practice immigration law. Founded in 1946, the association is a nonpartisan, nonprofit organization and is an affiliated organization of the American Bar Association (ABA). AILA takes a very broad view on immigration matters because our member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students.
Each day, AILA members confront the many problems that result from the backlogs. These problems are of major concern to families, businesses and communities nationwide. Through no fault of their own, families remain separated, businesses cannot acquire the workers they need, doctors with life saving skills are prevented from entering the country, skilled professionals who are sought by American business to create American jobs remain stranded abroad . . . and these examples could go on and on.
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Backlogs not only harm the people directly caught in their web, they undermine public trust in the immigration system. AILA applauds this subcommittee's interest in the effects of backlogs and its understanding of their importance.
I hope in my testimony to document the problem and propose solutions that require the commitment of both the United States Citizenship and Immigration Services (USCIS) and Congress.
WHAT IS THE BACKLOG?
Before we discuss the impact of backlogs and lengthy processing times, or how to best address them, we need to define them. Director Aguirre of the USCIS has provided one definition, based on cycle times. That is a valid view from a government operations perspective. But we need to look at this issue from the user's viewpoint. A processing time is the time from when the application arrives at the agency until a final decision is reached and the benefit is either granted or denied. For the sake of this discussion, we will treat multi-step processes as though they were separate applications.
For example, the current processing time for an adjustment of status application—the final step in the green card application process—is 26 to 29 months at the service centers. This does not mean that an adjudicator spends 26 months reviewing and considering a case. Indeed, that process is measured in minutes or hours. Instead, it means that the case sits on a shelf for 26 months until an adjudicator picks it up and begins to consider it.
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The time that that case spends on the shelf with no review by an adjudicator is what we would term the ''primary backlog.''
However, the story does not end when the adjudicator picks up the case and begins to consider it. Security checks first must be performed.(see footnote 1) Depending on the type of check, most can be cleared within 72 hours. However, in enough cases to be noticeable, a ''hit'' occurs or the security agency simply fails to get back to USCIS in a timely manner. Usually, the ''hit'' is caused by the person's name being similar to the name of someone with a problem (this is a particular problem with some common names), and eventually will be cleared. These cases become part of a ''secondary backlog,'' which we also refer to as the ''hidden backlog'' because the agency usually does not account for this delay in its processing time reports.
A case also becomes part of the secondary or hidden backlog when the adjudicator requests additional evidence. If the adjudicator does not reach a decision when initially reviewing the case, but instead asks for more documentation, additional time is added to the process. Depending upon how much documentation is requested (a request asking for 45 different items of sometimes obscure documentation has not been uncommon), this exchange can add considerable time to the process.
The secondary backlog also includes the little-discussed but increasingly important Administrative Appeals Office (''AAO''). For reasons that I will detail later, an unintended consequence of one of USCIS' initiatives may be to shift more cases to an already-bursting AAO. While the AAO's backlog is rarely counted in evaluating USCIS performance, its increasing importance requires attention to its already critical backlog.
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Any meaningful backlog reduction plan must address the secondary backlogs as well as the primary ones, or public confidence in the system will continue to erode.
WHAT IS THE IMPACT OF THE BACKLOGS?
The U.S. immigration system allows long-term, work-authorized statuses in two situations: compassionate circumstances where we might be literally saving a person's life by offering the protection of our borders, or circumstances in which an American citizen or permanent resident with a family or business interest in a person petitions on that person's behalf. Examples abound of where the purposes underlying this system are undermined or even defeated by the backlogs. For instance:
A Rwandan woman who witnessed the torture and killing of her parents and siblings applied for asylum seven years ago, and has yet to be so much as scheduled for an interview. She suffers from post-traumatic stress disorder, and lives in constant fear of being sent back to Rwanda. She had been brought here from a refugee camp by a trafficker who attempted to enslave her into prostitution. But because she never received an interview and has been uncertain of her future here, she never went to the police with information about this sex trafficker. The evidence is now lost, and this perpetrator is still at large.
A Sales & Marketing Vice President for a U.S. owned Fortune 500 company is in charge of Latin American accounts, and oversees multi-millions of dollars in exports from the United States to that region. He has had an application for adjustment of status to permanent residence pending since April 2002, and must regularly renew simple travel permissions in order to travel to perform his job. In 2003, when processing times for the travel permissions slipped to seven months, he had to cancel many trips, thus interfering with his company's export pipeline. For this year, he filed over five months ago, and still has six weeks left on his travel permit, but his company is worried that he may not receive his new permit in time. Between the backlog on the permanent residence application and the backlog on travel permissions while his permanent residence application is pending, his company is at constant risk of disruption of its international trade.
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One of the top ten U.S. medical centers had to lay off one of its best surgeons because the USCIS was taking 5 months to renew his work authorization card, even though USCIS' own regulations require that these cards be processed within 90 days. The hospital, the surgeon and his patients all suffered from his forced unavailability.
More than two years ago, a specialty cook in Manhattan was granted permanent residence by an immigration judge. Even though the gentleman is, by law, a permanent resident, DHS has been unable—despite extensive efforts by his attorney—to provide him with a green card or other evidence of his status. He lost his job, and is unable to find another, because he does not have evidence of his status.
A Brazilian married to a United States citizen had an approved immigrant petition (the first stage of the green card process), and filed an application to adjust status to permanent residence in New York some two years ago. Like so many Americans, she and her husband moved during this waiting period. She dutifully submitted a change of address to the official address for such changes, and also sent two confirming letters to the New York office of what was then INS. She inquired at the USCIS customer service 800 number, but on her third inquiry was told that she had ''used up'' her maximum allowance of two inquiries, and would not be able to inquire again. Unfortunately, while she was prohibited from inquiring, she received a notice denying her case due to failure to appear for an interview. Her failure resulted from the agency sending her appointment notice to her old address, notwithstanding her efforts to notify the agency of her change of address. She is attempting to reopen her case, but now is in a position in which she would be barred from reentry if she were to travel, and she has a sick parent in Brazil.
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A Canadian applicant for permanent residence, after already waiting seven months for a simple travel permission, learned that his brother had fallen ill. Although, to their credit, the local USCIS office made every effort to persuade the service center to issue the permission, it did not come until 2 1/2 weeks later. Unfortunately, the brother had died in the meantime and this gentleman missed not only seeing his brother one last time, but also missed his funeral.
A highly-rated nephrologist has been waiting outside the U.S. since December 2002 for a decision on his application for a waiver of a foreign residence requirement, notwithstanding his specialization—much-needed in the United States—in a field with unusually high mortality rates.
A young nurse from Mexico works for a Massachusetts family with a severely handicapped child. The child's doctors have been amazed at the child's progress under this young woman's care. For example, she has made it her mission to teach the child to walk when doctors thought this never would be possible. The family sponsored the nurse's permanent residence in December 2000, and due to the length of waiting times at Department of Labor and USCIS, she has now fallen out of status. The family worries constantly that they will lose the caregiver who has become their child's salvation.
Sometimes the problem involves simply getting a document into someone's hands. An employment-based immigrant petition was approved some months ago, but the approval notice was never received by the employer or employee. They are now being told that they must file an application for a replacement document. The processing time for applications for replacement documents is two years, which renders meaningless the approval of the initial petition.
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The backlogs have lead to still other negative consequences:
Many college scholarships are available only to permanent residents or U.S. citizens. A group of Kakuma ''lost boys'' from the Sudan currently residing in South Dakota have progressed rapidly in the United States. They could attend college, but for their lack of resources. They are unable to receive scholarships because of their current immigration status. They may lose the opportunity altogether to attend college because their permanent residence applications are trapped in the backlog.
Some states grant drivers licenses for only as long as a person's nonimmigrant status is valid. When a person applies to extend their nonimmigrant status, USCIS often goes beyond the expiration date of the previous status in processing the extension. The result is that the applicant loses his ability to drive.
Backlogs have negative impacts beyond the processing of applications. The Social Security Administration will not issue a social security number until the Department of Homeland Security (DHS) verifies an individual's immigration status. People have waited months for their verifications to come through. This delay complicates not only their ability to get on payroll, but also some states (like my own state of Illinois) will not give them a driver's license until they can show a social security number. Thus, everyday acts of living are barred by backlogs at DHS.
Clearly, the backlogs are having negative consequences for individuals, families and businesses throughout the country. No one supports these backlogs, but they now commonly occur and have grown exponentially over the years. The pressing issue is what efforts has the USCIS undertaken to eliminate these backlogs, and what can Congress do to facilitate their elimination.
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IMPROVING POLICIES AND PROCESSES
Steps in the Right Direction: USCIS recently has made some changes that are distinct steps in the right direction, and that we anticipate will help to decrease the backlogs. However, taken alone, or even together, they will not ''get us there'' but they certainly get us headed down the right road. These steps include:
No readjudication of established facts. Recent guidance to adjudicators instructed that, in extensions of status where no facts or law have changed and there was not a material error or fraud in the previous adjudication, deference should be given to the prior adjudication. This is an important step forward, as it complies with existing regulations that do not require review of extensive documentation in these circumstances and prevents adjudicators from slowing the process by demanding additional documentation where none is needed. It is an effective form of risk management.
Storage of biometrics. For too long, every time a card needed a biometric, the alien would have to return to the agency to provide it, thus requiring the alien to travel often long distances and using up agency resources that would be unnecessary if the biometrics could have been kept on file. The agency now has the capability to keep these biometrics on file. This is particularly important for naturalization and permanent residence applications. In order to have the necessary security checks performed, the alien must provide fingerprints of all ten fingers, which are then run through the FBI database. These checks are valid only for 15 months. In all too many instances, the fingerprints must be taken and re-taken two or three times while the naturalization or permanent residence application is pending. If these fingerprints are stored, then the alien will not have to return to be re-printed every time, thus saving resources on both sides. While the elimination of the need for re-fingerprinting is not in effect yet, we look forward to the day in the near future when it does take effect.
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Infopass. We congratulate Director Aguirre on looking to his field for ideas to improve service. Some of the best innovations come from the USCIS staff in the field who face the everyday challenges of moving volumes of applications through the system, and often come up with practical ideas to work around the problems that they encounter. Infopass was one such innovation. Already implemented in three of USCIS' busiest districts, this on-line appointment system has, after a few of the inevitable start-up glitches, proven to be almost revolutionary in getting lines and appointments under control. We look forward to its rollout to other offices in the coming months.
Case status on-line. One of the best innovations USCIS has implemented has been the feature that allows applicants to check the status of their cases using the internet. This has undoubtedly cut the number of calls and inquiries to USCIS exponentially, freeing staff for other duties.
Employment authorization documents. We understand that, very shortly, the USCIS will publish a regulation that will allow the agency to issue work authorization cards for validity periods that are more in line with the actual time needed, rather than the current lock-step one-year period. This change will significantly reduce the number of applications that must be processed, freeing personnel to process other application types.
We urge USCIS to take this initiative one step further, and apply the extended validity period to travel permissions, generally known as advance paroles. Ideally, the requirement of an advance parole should be eliminated for persons holding valid nonimmigrant visas. For those who otherwise would require such permission, the permission document should be valid for as long as is necessary to see the individual through the underlying adjustment of status process and, better yet, should be on the employment authorization card, thus necessitating only one document and being contained on a more tamper-resistant document.
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Pilot programs. USCIS has, in conjunction with its Ombudsman, initiated some pilot programs that could elicit information about processes that would be particularly useful in keeping further backlogs from developing. We look forward to learning the results of these programs and to the implementation of the ideas that could emerge from them.
Changes that Have Not Helped or that Have Hurt Backlog Reduction Efforts: Unfortunately, not all of USCIS' initiatives have helped decrease the backlogs. In fact, some have been setbacks. While we congratulate the agency for experimenting with a variety of initiatives, we hope that it will recognize when a reform has failed or when one needs further work, and either abandon the idea or make the necessary changes. Some initiatives that need revisiting include:
Electronic filing. The movement to e-government is admirable, but care must be taken to ensure that it is not an empty shell that provides no meaningful improvements. Unfortunately, most aspects of the USCIS e-filing initiative have had a negligible impact on the backlog and, and, with one exception, show little prospect of enhancing efficiency in the two-year time period in which this agency strives to bring its backlogs under control. Under e-filing, forms are filed electronically, but the required supporting documentation must be mailed in separately and then matched with the file, itself creating an additional piece of work. And, more importantly, the process is just e-filing, not e-adjudication: the adjudication process is manual, providing no efficiencies on the processing end where it is most needed.
The one possible exception lies in a pilot project in California. The agency here is experimenting with green card replacement applications filed electronically serving as a conduit for direct production of the new card. We urge USCIS to find other similar ways in which the electronic filing can be used meaningfully, such as capturing data for the adjudicator's use.
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Decision at first review. Here is a prime example of a good idea gone bad. AILA and other stakeholders have long urged USCIS and its predecessor to get under control its ever-proliferating volume of Requests for Evidence (RFEs), which are too often multi-page, multi-item demands for documentation that often were either already provided, were not relevant to the application at hand, or were necessitated by the sheer length of time the application had sat on the shelf. The volume of RFEs has grown in recent years as adjudicators, nervous about whether they might be criticized for a decision, became increasingly paralyzed and chose to make a show of demanding further documentation before they would approve an approvable case.
USCIS finally addressed these RFEs in a recent guidance to the field. However, this guidance unfortunately may make the situation worse instead of better. Failing to tell adjudicators that they can go ahead and approve a case if the documentation is complete, the memo instructs adjudicators to deny cases that previously would have received an RFE. While this instruction will make cases move faster initially, it really does no more than shift parts of the primary backlog to a part of the secondary backlog: the AAO. The AAO already has a backlog measurable in years for some case types, and USCIS is not including AAO in its backlog reduction initiative. Thus, the effect of the ''decision at first review'' initiative is to simply shift some of the backlog from where it is counted to an office where it will not be counted. That is not backlog reduction: that is hiding the backlog.
National Customer Service Center. This 800 number for customer service must have seemed like a good idea at the time. Give people a toll-free number that they can actually get through on, and improved customer service will result. Unfortunately, it has not worked out that way, particularly with respect to solving problems on applications already on file and with respect to providing misguided and ultimately harmful advice to members of the public. To its credit, USCIS has acknowledged that the 800 number is not a workable means to resolve problems on cases already on file, and has indicated that they are working on a solution that would put the problem-solving process back in the hands of the USCIS-employed Immigration Information Officers who have access to the files and knowledge of the system. We eagerly await this solution.
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Outsourcing the Immigration Information Officer Function. But, a current Administration initiative may serve to undermine this planned solution. It is important to note that the 800 number is answered by an outside contractor, and that many of the problems that have developed are inherent in the fact that an outside contractor is not fully trained in immigration, is not fully accountable for performance, and does not have access to case files. We understand that the agency is soliciting bids from contractors to privatize the Immigration Information Officer function. If this initiative is successful, the reform of the 800 number may be rendered meaningless, as these functions will again be placed in the hands of contractors who lack the knowledge and information to provide the service on a fully-informed basis. AILA believes that both the 800 number system and the IIO function are inherently governmental activities and should not be contracted out.
We also urge USCIS to replicate what it did with respect to Infopass by looking to its own field for innovative solutions. In order to provide effective problem-solving on already-filed applications, the California Service Center of USCIS put in place an additional operational division, known as Division XII, designed solely to address problems raised by people with applications and petitions pending at that office. It contains the right mix of people, expertise and systems to deliver one of the most effective customer service solutions in the field. We urge Director Aguirre to look at implementing a similar approach in other offices.
Policies that Punish Applicants for the Backlogs: Immigration statutes are complex and often leave areas open to agency interpretation. USCIS has been interpreting some statutes restrictively when a broad interpretation was equally possible or even the better interpretation. While USCIS is working toward its backlog reduction goals, it needs to re-think these policies so that the public is not punished for its own slowness. At the risk of oversimplification, here are three examples where other reasonable readings of the law would ameliorate the impact of the agency's own delays:
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It is too often the case that an individual will apply for a change or extension of a nonimmigrant status, and the initial status expires while she is awaiting action on the application. After the status expires, but before the application is processed, life happens, and the person, for instance, gets another job offer or decides to start school, requiring yet another application. But, because her initial status expired, through no fault of her own, the USCIS has been taking the position since April 2003 that the second application can be denied because the first application was not approved before it was filed. This punishes the applicant for the agency's own slowness in processing the first application.
The USCIS has recently changed its view and taken the position that if, during the years that it takes for an adjustment of status to permanent residence application to be adjudicated, the applicant's work authorization lapses, the applicant is no longer eligible for adjustment to permanent residence if he works during the lapse. This despite the fact that the lapse is usually due to the USCIS' slowness in processing the work authorization application.
In October 2000, Congress enacted the American Competitiveness in the Twenty-First Century Act (''AC21'') in order to ameliorate some of the effects of the backlogs that existed even then. As no regulations have been issued, USCIS offices have been interpreting this legislation on their own. Some offices have followed policies that essentially eviscerate the ameliorative provisions of this legislation, essentially rendering them useless in the face of backlogs that have only worsened since the statute's enactment.
OTHER PROBLEMS AND SOLUTIONS
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In addition to the initiatives that have been announced, AILA suggests that USCIS look at some other areas that have contributed to the problems and implement some additional reforms.
Guidance and Training: We have discussed elsewhere the problem of adjudicator paralysis. There has been a similar paralysis with respect to providing adjudicators with adequate guidance and training. Not a single regulation on a substantive issue has been promulgated since the advent of the Department of Homeland Security. Yet, legislation dating back to 1996 and 2000 have yet to be the subject of even a proposed regulation. There have been some guidances to field, but they do not begin to touch on all of the issues involved in the body of immigration law that adjudicators must apply.
Because of this lack of guidance, adjudicators are forced to come up with their own interpretations that they often develop in a vacuum. Because of their uncertainty about the law, Requests for Evidence have proliferated and cases are being put aside while further guidance is sought. The USCIS needs to overcome its policymaking paralysis, and issue regulations and guidance, to help its adjudicators overcome their decision-making paralysis.
Secondary backlogs: USCIS must integrate into its backlog reduction efforts a plan to address the secondary backlogs previously addressed. As long as innocent applicants see their applications delayed for months or years beyond even the regular backlogged processing times, as long as RFE waits are not counted in the overall processing times, and as long as policies send more and more cases into a badly backlogged AAO, the public will view any claims of success in backlog reduction as disingenuous or misleading.
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All of these secondary backlogs are important, but the delays in the security checks are probably the most important. As Director Aguirre demonstrated last week, the then-INS was making progress in backlog reduction until September 11 brought home the utter necessity of implementing a strict regimen of background checks. Now that the checks are in place, it is vital that the agencies through which the checks are processed appreciate the importance of a prompt and thorough response. This is critical not only to ensure a timely and legitimate immigration process, but to enable security and law enforcement agencies to act immediately when a person is identified who could be a danger to our security. These lengthy delays are beneficial to no one: not to the impacted individuals, not to the agency, and not to our nation's security interests.
Improve coordination: Since the formation of DHS, a number of issues have arisen that straddle the lines between USCIS and its sister bureaus, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). We have seen in recent months some improvement in selected areas, such as the development of processes by USCIS and CBP to correct erroneous entry documents. We urge the bureaus to continue and intensify these efforts.
RESOURCES
There is an 800-pound gorilla sitting in this room. Let's talk about it. No matter how many initiatives and innovations USCIS undertakes, in the end it's all about resources. Immigration petitions and applications are individual cases that require a thoughtful human being to consider the merits and reach a decision. No amount of management systems can, in the end, eliminate that factor. And the fact is, there simply are not enough of those human beings in place to accomplish the job. AILA has watched as INS Commissioner after INS Commissioner has been harshly criticized over the backlogs (and, indeed, we have done more than our fair share of the criticizing). We now see a USCIS Director undergo the same experience. Surely not all, or even a majority of, these smart, well-meaning people have been incompetent. Indeed, AILA has seen the opposite—competence and even brilliance—in these offices. But, somehow the backlogs continue.
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Perhaps it is time to see, as Julius Caesar pointed out to Brutus, that the fault lies not in the stars, but in ourselves. Or, as a more modern hero, Pogo, said, ''we have seen the enemy and he is us.'' We have long pretended that with a little more ingenuity and a little better management, the backlogs can be brought under control. Let's end the pretence here and now: This agency needs more money to do its job. And this funding needs to come from direct Congressional appropriations, not increased user fees.
Over the past couple of decades, the myth has developed that immigration processing should be entirely funded by filing fees. The truth is, fee-based funding is nothing more than a giant, government-endorsed pyramid scheme, always on the brink of collapsing under its own weight. Let me give just a few examples of the weaknesses inherent in relying on user fees to fund the USCIS.
Because of the backlogs, the agency is in the constant situation of using new filing fees to pay for adjudication of applications filed in previous years. Essentially, the agency is using new sales to purchase old inventory, with no visible means to pay for the new inventory that continues to come in.
The Administration has requested a backlog reduction budget of $140 million for the next fiscal year, ostensibly to pay for this old inventory. However, this budget request is illusory. In previous years, directly appropriated funds paid for USCIS' overhead (fixed expenses such as file maintenance, payroll functions, etc.). This amount, which this fiscal year totals $155 million, is now to be paid out of the fee account. Thus, far from getting an appropriations ''shot in the arm'' to help the backlogs, USCIS will be losing at least $15 million if the budget is passed as proposed.
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Paying overhead out of the fee account is a particularly dangerous action and could be the factor that finally causes the pyramid to fall. Overhead does not rise and fall with the number of applications: it remains fixed whether the agency gets one application or one million. But if, as has happened in the first part of this year, the volume of applications decreases,(see footnote 2) so does the income generated from fees. And there is no reliable stream of income to continue to maintain the fixed expenses. Overhead is an amount that must come from directly appropriated funds.
Other resource issues also plague USCIS. DHS currently is reportedly under a hiring freeze. Thus USCIS cannot bring in the new personnel needed to address the backlog. It takes considerably longer to bring a new agency employee on board than would be conceivable in the private sector or even in Congress, so the substantial lead time needed is being lost. And we cannot look to getting extra help from existing personnel, as overtime within USCIS has been severely capped for the year.
Some offices of USCIS also face an imminent personnel crisis. Many of the adjudication positions within the agency are ''term'' positions—in other words, temporary positions, generally available only for four years. Many of these terms are now expiring—with the backlog no further in hand—and these experienced and trained personnel are departing at a rapid rate as they find steadier employment. Congress needs to act immediately to extend these terms or, better yet, convert the jobs to permanent.
Finally, we cannot ignore another false solution that has been proposed: the outsourcing of the Immigration Information Officer (''IIO'') function. One need only look at the deeply flawed, contractor operated, National Customer Service Center to see that outside contractors do not have the knowledge, training or accountability necessary to deliver effective information on the complexities of immigration to the public. Also, the outsourcing proposal ignores an important role of the IIOs in many offices: they act as junior adjudicators, reviewing and deciding on cases. To outsource this function would be to further starve an already resource-deprived operation.
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It is well past time that Congress and the Administration gave this agency the resources it needs to do its job. AILA urges that a second look be taken at what resources are really needed, and the money be once and for all authorized and appropriated to do the job right.
Mr. HOSTETTLER. The Chair now recognizes the gentlewoman from Texas for the purposes of an opening statement.
Ms. JACKSON LEE. I thank the distinguished Chairman, and I will take this time to be very brief. Let me, first of all, ask unanimous consent that my entire statement be placed into the record.
Mr. HOSTETTLER. Without objection.
Ms. JACKSON LEE. And let me do a minor bit of housekeeping on behalf of Mr. Weiner, a Member of the full Committee. Mr. Weiner asks these questions—
Number one: How many additional employees would it take to completely reduce the backlog?
Number two: How much would this cost?
Number three: Are there bureaucratic obstacles to hiring these employees?
Number four: Why have past plans for backlog reduction failed?
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I ask unanimous consent for a response by witnesses.
Mr. HOSTETTLER. Without objection.
Ms. JACKSON LEE. Let me thank the witnesses. Each have a unique and special perspective to add. This has been long in coming. We spent time last week with Director Aguirre, and I know that Members could account for any number of times that they have been confronted with stories such as that that Mr. Zulkie has indicated occurred with the tragic situation of the woman in Rwanda.
Right now in Houston I have two individuals who are presently being detained. I would suggest that their plight has come about because of the extensive backlog. One had been a law enforcement officer for 19 years attempting to access the process, but got awry, and finds himself in a difficult predicament. My point is that he worked in law enforcement for 19 years, and so he is a contributing individual to this community and would like to remain here, but, of course, because of the backlog and delay of accessing the situation, he finds himself in this predicament.
Another individual has received three degrees in this country and now has a 3-week-old on life support, and he, too, serving as a paralegal got awry because of the backlog and inability to access the system. There are painful stories to be told.
What my concern is as we move toward this process of unclogging the backlog are questions of due process and fairness. One, if we are to unclog the backlog, and that means we will not waste time trying to secure lost fingerprints and other materials without kicking it up to the next level, is that a fair process, because once you kick it up to the next level, then you are in an appeal process, which is a slower process, as most realize. I am concerned that we will then ignore the second call to get the fingerprints and simply kick that incomplete file up to the next level, which makes it a more difficult hurdle to overcome.
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The other point I would like to make, and I will put my complete statement into the record, is the simple process of calling in numbers. I know our distinguished Ombudsman Mr. Khatri will be able to respond in kind to these, but I am told that 800-number operators can transfer calls to what we call the second tier, but I have also heard claims that the second tier officers frequently just tell callers to write a letter to the service center.
Mr. Chairman, we have a lot of hard-working Federal employees but you can be assured when you get kicked up to the service centers in some of our regions, and I might mention that need more resources, you are going to be on a long, long haul trying to get through or trying to get your letter through.
Mr. Chairman, I think we have found ourselves through these 2 years circling around issues of agreement that your constituents, who are clearly of a different perspective than mine, would tend to agree with, and that is we have done some things in the past, and this one I hope has some common degree of agreement, and that is that the backlog must be approached head on, we must do it in a bipartisan way, and we must not yield to any prisoners, if you will, and we must not take no for an answer. And we must gear ourselves to fixing this system because we all are better off if the system of Government works better so individuals who are accessing the rules of citizenship and legalization can do so in a fair way.
I yield back my time.
Mr. HOSTETTLER. I thank the gentlewoman.
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The Subcommittee will now turn to questions of the witnesses.
Mr. Khatri, as you know, the Homeland Security Act requires that you send your report as Ombudsman to us ''without any prior comment or amendment from any officer of the Department of Homeland Security or the Office of Management and Budget.''
Did you have to clear your report with any other party at DHS before sending it officially to Congress today, or the OMB?
Mr. KHATRI. No, Mr. Chairman.
Mr. HOSTETTLER. That must have been why it was here a week earlier, as well as your stellar work.
I am glad that your testimony mentions your recommendations will ''promote national security and the integrity of the legal immigration system.''
Can you expand on that as to how you believe the recommendations that you have made would do those two things?
Mr. KHATRI. Let me continue with the example that I cited of the Dallas pilot project. In that particular project, the pilot really seeks to eliminate the need for the interim benefits, the employment authorization cards, the travel documentation that individuals need when there is an extended period of processing.
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What my recommendations have done is basically taken what used to be a very, very long process and basically turned it upside down. By that I mean what USCIS is doing in the pilot in Dallas is basically on the day an individual files, an officer actually looks at the documentation and determines whether or not the person has filed appropriately so we do not get the RFEs and the additional documentation requests in the future, but, more importantly, on the same day the individual and their petitioning spouse or parent are interviewed and a determination is made as to whether or not they appear to have eligibility, which then leaves simply the security checks and the records checks.
At the end of that process, what ends up happening is in 60 days or so, most people clear security checks. Upwards of 90 percent clear security checks within the 60-day process, the four different security checks that are conducted. At the end of that, the individual will receive their green card. What this does is it eliminates the EADs, the employment authorization documents, which today, from my background at Disney, I can tell you there are numerous instances where we used to see these documents which had been fraudulently created because they are old 1980's technology which basically involves a Polaroid camera picture. So those types of documents will forever not be required for most of the individuals. And for those few that may get stuck in the process, they will actually receive a better, more enhanced secure card and will be able to be processed. But in the meantime, the bulk or the majority of the people will have been processed, and that, I suggest, will substantially reduce first and foremost fraudulent applications that might have been filed for the purpose of obtaining these interim benefits. These people will no longer be able to do that. So we will be able to process people faster, more efficiently, and more securely.
Mr. HOSTETTLER. Ms. Stern and Mr. Zulkie, could you comment on that? It sounds like the suggestion of turning the process on its head may significantly reduce if not the backlog as it exists today, then for future applicants. Can you comment on what Mr. Khatri has suggested?
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Ms. STERN. Yes, thank you.
In the commercial sector, any process that becomes more efficient reduces the margin of error. When there is a focused attention to what the project is, there is less of an aptitude for there to be errors, in this instance, in the Agency context, for there to be fraud. There is more an ability on the part of the adjudicator in this instance to be able to give thoughtful attention to each file if they are not overburdened.
So if these projects are implemented with attention to how the field handles what is given to them, then they can be quite effective in deterring both fraud and eliminating the security threat.
What I think cannot be forgotten is there are human beings who are line officers who will be handling these files, and they have to be trained adequately so that whatever technological help they are given, whatever new programs are rolled out from headquarters, are implemented in the appropriate fashion so there is accuracy. Thank you.
Mr. ZULKIE. Mr. Chairman, my association has worked with Mr. Khatri on brainstorming, if you will, on developing some of these pilot programs, and they are very interesting, and I think they do offer some promise for the future.
Two points to remember, the pilot programs, and even if they spread, will not address the pending backlog, the millions in the pipeline. And one thing that many Congress Members may be concerned about is starting to hear from constituents who are in the backlog and not eligible to participate in these pilot programs. They will feel very shortchanged by this process, and it is something that the Administration needs to address through the subject of this hearing, the broader backlog reduction plan.
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Mr. HOSTETTLER. Thank you.
The Chair recognizes Congresswoman Jackson Lee for 5 minutes.
Ms. JACKSON LEE. Mr. Khatri, the very fact that you are there is a breath of fresh air. I think in time the evidence of your work will show itself. But let me restate some of the frustration that occurs beyond Members' offices here in Congress, but just in terms of families trying to reunite, families trying to get information.
I think the uniqueness of this hearing is we are talking about individuals who are trying to access legalization who are in line, and we can account for thousands. And as Director Aguirre said last week, he counts 3 million, and we have been using the number 6 million. That number is still looming large, the 6 million.
Mr. Zulkie, one of the issues that you comment on in your report is limited case status information. That piques our frustration. What will be your role with respect to ensuring that people have a better access to case status information?
And this goes from the most minute simple question which it seems like someone can get to a more complicated one. I imagine the billable hours Mr. Zulkie's organization spent on phone lines calling for a simple inquiry to make his great clients think it is good to have counsel because finally I have gotten an answer. What are we doing to eliminate the frustration and wrongness of not being able to access your own information?
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And I will also raise this question: Last week I posed a question which I intend to pose which is whether or not we need more resources. I know you did not come here as a legislator or appropriator, but in the vastness of your knowledge and Members' knowledge across the country in reaching out to various resources, and when I say resources, service centers and local offices, would you think that we could solve this backlog with what seems to be the present level of funding? Or would you believe in order to reorder what we are doing, possibly to secure new staffing or training, that we would need new resources?
And I throw another question in, and then I will yield. Are you satisfied with the present regional structuring of where we place centers so that someone, as I understand it, in New Orleans may have to travel to get to an office or central office? Obviously, those of us in Houston are traveling somewhere. Are you satisfied with that? And I yield to the distinguished gentleman for his questions.
Mr. KHATRI. Thank you, Ms. Jackson Lee.
In addressing your concern regarding the access and the ability to find out about the case status, obviously that is an important issue, and we are really concerned. We are as concerned as everyone else is about the 800 line and its inabilities to answer the questions of individuals. Our office has taken a keen interest in that.
We will hopefully in the coming weeks come up with some very specific recommendations, and we are hoping that USCIS, as they have done for our other three recommendations, will take them seriously and will give due consideration and implement hopefully right away because that may not require a pilot.
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Mr. ZULKIE. Thank you, Ms. Jackson Lee. The first question in the list for me is the determination of whether or not the resources the Administration proposes to allocate are adequate. In our opinion they are not. A recently published study by the Government Accounting Office on USCIS backlogs made a finding that USCIS does not really know what it costs them to process an individual application or petition, and USCIS agreed with that finding.
So now we have a situation where there is a plan laid out there, but there has been no analysis of how many people hours will it take to reduce this backlog within the time frame that Director Aguirre says it can be done. The Director suggests there will be some interesting and helpful information technology improvements. We would certainly welcome them. Again, there has been no real analysis that we have seen as to what that will cost or where the money will come from.
Respectfully, what we would suggest perhaps is that this Committee mandate the Government Accounting Office to do a follow-up study: What does it cost the USCIS to process all of its applications and petitions today? What do they think or project it will cost to process those applications and petitions 1 year from now, 2 years from now when a number of efficiencies and the pilot programs are more widespread? What will the new information technology cost?
And a related issue, and this relates to the questions you read into the record earlier from your colleague on the Committee, are there obstacles to hiring new people? What is it going to take to get new people on board?
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Well, there are a couple of obstacles. First of all, we have seen media reports that there is a hiring freeze at the Department of Homeland Security. I don't think that has been officially confirmed by the Department. I am only going on the media reports, but if there is, that makes it difficult to add more people to process cases.
There is the other problem of background checks that are performed on Federal employees. We have heard anecdotally from managers in offices that it is taking 6 to 12 months and in some cases more than a year to get the appropriate background clearances before an individual can be hired. It seems to me that is going to make it fairly difficult to get quality people to take those jobs.
Back to the issue of case status and accessing information, the 800 number, while it seemed like a good idea when they rolled it out, unfortunately has not worked out very well. We believe the principal reason it has not worked out is because the system was contracted out to a nongovernmental entity; and, unfortunately, the individuals who performed this job just are not trained in immigration law, and the system is really not set up to deal with pending cases. It works well if you are calling to get a form number or an address of what office to send it to, but it does not work well to get information on cases.
We have suggested with pending cases there be an automatic referral to the service center where a trained Immigration Information Officer can answer the question. They have access to the file, and they are trained. Yet, in my final statement on this, the Administration has proposed to outsource or contract out the Immigration Information Officer position, which I believe the House voted against the other day. In our opinion, philosophies aside, it just will not work sending it out to a private contractor. It has been a failure with the 800 number, and the IIO function, if it is contracted out, will reinforce that failure.
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Ms. JACKSON LEE. If I might be indulged an additional 30 seconds, Chairman, I think, will allow me to say we voted together in opposition to that position of outsourcing, and we might be able to join with each other on the idea that you have now suggested maybe about an additional review about cost. We may ultimately disagree on whether we should move forward. I would say we should; the Chairman may say not. But I think the facts would be helpful to him and this Committee as to what the cost actually is, an independent assessment of what the cost is, because we are all in agreement that a backlog does not help anyone.
Certainly whatever position you happen to take on this question you might want to provide me in writing unless you have one sentence to answer about the way we have this system set up, like the centers that I mentioned in Memphis and Texas. And I will close on this note just to thank you, Mr. Zulkie, for the excellent staff that you have visiting with us all the time. I can assure you that they are both informed and bipartisan. We look forward to working with you.
Mr. ZULKIE. Thank you. That is very kind of you.
Mr. HOSTETTLER. The Chair recognizes Mr. King of Iowa for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. I thank the witnesses for their testimony today.
Ms. Stern, I point out in your testimony words to the general effect of ensuring timely processing for legals and then this quote, ''barring those who pose a threat to our populace.'' Would you entertain amending that to ''barring those who would not have legal access''?
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Ms. STERN. Absolutely. Obviously folks who are not eligible for benefits also should be denied benefits.
Mr. KING. Thank you. Just a little cleanup thing that lingered in my mind.
Mr. Zulkie, the President gave a speech on January 6 calling for a program that would expand the number of guest workers, was the term he used, and the public has used a far different term to define that program. There are varying estimates, between 8 and 14 million illegals in this country, some of whom would be processed if that program were approved. We sit here with a significant backlog which we have significant concern about. Should there be a program, a guest worker program, approved that may be legalized in some fashion or another, 8 million of those workers? What do you think the impact of that would be to the backlog?
[5:45 p.m.]
Mr. ZULKIE. Thank you, Congressman. If the Congress were to pass such legislation and it was signed by the White House, I think it is obvious to everyone that the existing resources provided to USCIS could not possibly take that on. Realistically, the Congress would have to appropriate funds either for additional resources for USCIS to handle it, or perhaps as occurred in 1986, there was a freestanding separate unit or units around the country that just processed what was called the amnesty applications outside the then-INS benefit processing system
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Mr. KING. If we had a freestanding organization like that, do you believe that could be funded by employers and guest workers?
Mr. ZULKIE. That is a decision for Congress to decide. Potentially, yes, it could; or it could also be a unit that is separate from USCIS, or under its auspices, but unique and freestanding.
Mr. KING. Then with regard to national security, do you think that that type of a program could risk lowering the bar for national security?
Mr. ZULKIE. Quite the contrary. I think it would enhance our national security, because we do not believe—with the number of people that you cite who are possibly here who are not documented, it is much better we know who is here. Every one of these individuals would be subject to a FBI, CIA background clearance and no doubt some people would not pass muster. And I think we would rather know who is here and give them identity, let them come forward and do the jobs that we need them to do, take care of our grandmothers in the nursing homes and take care of our children, and our security is much better off knowing who they are.
Mr. KING. Aside from the concern that if we set up a separate entity to deal with this, you still have to have the background checks that would have to grow, then, our FBI and security people to do those background security checks. Once again we end up with an administrative problem that is compounded by this issue.
I will just address the issue of the bogus petitions that was testified to by Mr. Aguirre last week; that the bogus petitions, maybe as many as 40 percent of them—of the petitions are bogus. Do you believe that we can streamline this process if we could increase the punishment on bogus petitions and clean them out of the system and disincent those in the process?
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Mr. ZULKIE. Director Aguirre's testimony to that effect is the first time that we have ever heard any USCIS official use a number like that. And we find it fairly hard to believe that 40 percent of the petitions are fraudulent, particularly given the small level of enforcement or prosecutions undertaken by the Government. Let me add that simply because a petition is pending before USCIS, that in no way precludes the relevant law enforcement agencies from either pursuing criminal prosecution or removal of an individual from the United States.
Mr. KING. Thank you. And time moving along here, I turn to Mr. Khatri; and that is, there has been a request made here for more money and more resources, not from fees, but from the general fund presumably. And I know that Mr. Aguirre testified last week that he had enough resources, he needed to use more innovation and more ideas and streamline that. And I am asking this softball question today, because you brought your family along and I think I will take it a little easy on you. So could you answer that question before time runs out?
Mr. KHATRI. As regards the USCIS funding issue, I believe Director Aguirre is the word on that. If he stated, as he clearly did, that they do have sufficient funding, I believe they do and we should give them a chance to show that they do. I cannot dispute that. I don't run his organization. He has access to all of the records and I believe he did testify that he does have sufficient funds.
Mr. KING. And some of the innovation that you brought forward here today is some of the innovation he was referencing?
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Mr. KHATRI. Yes. That will assist in helping. Now, obviously one of the things that some of our recommendations will do is clearly reduce substantially the number of filings that are required for interim benefits, and that will be a reduction in the fees. And this is where I think we will have to work with Congress to figure out if there is a better way. Maybe there is a way to fund the system much like a private entity. If we are expecting USCIS to run like a private entity from its own fees, I would think that we may want to consider, as we do for any organization coming out of bankruptcy or from a reorganization, as you will, that we do provide funding and maybe we do create a pool of money for USCIS to draw from, so that they don't have to be in a constant position of predicting how many applications are going to come, especially with the innovations and the resources that we are bringing to the table where we are actually, hopefully, going to eliminate many of the applications that are required and thus will cause a shortfall in the permanent funding of USCIS.
So, long term, yes, I do believe that Congress will have to work with USCIS in finding—maybe, you know, the best thing would be a replenishable fund that can be replenished annually.
Mr. KING. I thank the witnesses and the Chairman, and I yield back.
Mr. HOSTETTLER. I thank the gentleman.
The Chair reminds Members that we have 7 legislative days to make entries into the record.
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I want to thank Members of the panel for your insightful testimony. It will be very helpful in this process. And this Subcommittee will take your testimony to heart as well as apply it to our future actions.
Before I adjourn the Subcommittee, in keeping with the theme of embarrassing attendees, I just discovered that Vlad Cerga, who is our Committee's technical aide in the left corner of the room here, has passed his naturalization exam today. So we commend you. I am happy to announce that the Subcommittee is doing all we can to help reduce the backlog.
[Whereupon, at 5:50 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
BACKLOG ELIMINATION PLAN SUBMITTED BY U.S. CITIZENSHIP AND IMMIGRATION SERVICES
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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS
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I have a personal interest in eliminating the immigration benefits applications backlog. Houston's backlog on benefits applications is one of the longest in the country, longer than in Boston, Los Angeles, and San Diego. Approximately 50,000 people in the Houston area are waiting for the processing of an immigration benefits application. For some, the wait has been as long as five years.
Bianca Springer has a graduate degree in conflict analysis and resolution. Last week, as she and her husband, Jerry, sat in an office of the U.S. Citizenship and Immigration Services (USCIS), she said that she should have pursued a degree in bureaucracy. She has been trying unsuccessfully to resolve issues around her immigration application since moving to Houston from Miami 18 months ago, where she originally filed the paperwork. She sees no end in sight. She has not even been able to confirm that her files are at the Houston office.
People also are experiencing difficulty in learning about the status of their applications. Suliman Al-Rasheed is a retired executive with Saudi Aramco, an energy company. In 2002, after taking an early retirement, he moved from Saudi Arabia to Houston with his wife, who is a U.S. citizen, and their infant son. Two years and more than $7,000 later, he still doesn't know his status. He has asked, ''I want to start a business, am I going to be approved or not? Shall I pack up my family and go, or stay?''
New York is another place that is having serious backlog problems. The backlog of pending citizenship cases in New York exceeds 100,000, which is more than in any other district in the country.
A letter summoning Errol Taylor to be sworn in as a citizen on May 14 arrived at his Flatbush home more than a year after his interview and two years after he had applied for citizenship. This was too late for Mr. Taylor, a hospital worker who lived and worked in Brooklyn for decades after leaving Trinidad in 1975. He died in March.
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The costs and consequences of the delays go beyond personal heartache. Businesses that rely on foreign professionals are facing logistical headaches and added legal costs to maintain their workforces. Family members sponsoring a relative have died while the process dragged on. Some immigrants have inadvertently lapsed into illegality because work permits or other papers have expired.
Part of the problem is that additional security checks have been implemented in reaction to 9/11. Before 9/11, the government only ran security checks on some kinds of immigration applicants, such as those seeking citizenship. Now, every applicant must undergo security screening, which has caused the workload to balloon. Also, matches on FBI name checks cause substantial delays when paper files must be checked to determine whether the benefits applicant is the person in the FBI files. While name matches only occur in a small percentage of the applications, the total number of affected cases is substantial.
We also have seen a rise in the number of applications. FY2001 was the peak year for the number of immigration and naturalization petitions filed (7.8 million). Although the numbers have dropped somewhat in FY2002 and FY2003, the 7 million petitions filed during each of these periods exceed the levels of the late 1990s. For the current year, as of April 2004, a total of 3.5 million immigration and naturalization petitions have been filed.
I am optimistic that lengthy processing delays will soon be a thing of the past. Under the leadership of Director Eduardo Aguirre, Jr., USCIS has developed a plan for reducing the backlog and bringing processing times down to no more than 6 months. Mr. Aguirre is aggressively working to modernize the processing system so that it can process benefits applications more quickly without compromising national security, and he has pledged to see that USCIS personnel treat everyone with dignity and respect. This is not surprising in view of the fact that he came to the United States as an immigrant himself. He has first hand knowledge of the difficulties that immigrants can face in our country. I am anxious to hear his statement on the details of the plan that he has developed to achieve these objectives. Thank you.
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PREPARED STATEMENT OF THE HONORABLE ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Chairman Hostettler and Ranking Member Jackson Lee, thank you for holding this very important hearing to discuss a serious problem that affects our constituents all across the country. I would also like to thank Citizenship and Immigration (CIS) Services Director Eduardo Aguirre for joining us today to help us understand the petition backlog problem that has long plagued the former Immigration and Naturalization Services (INS) and now the CIS.
Since I became a member of the Subcommittee on Immigration, I have tried in many ways to work with the former INS and now with the CIS to find ways to eliminate the backlog and create a system that could seamlessly adjudicate immigration petitions in a timely fashion. Each time, I have run into what appears to be unnecessary roadblocks.
In my latest attempt, 44 bipartisan Members of Congress from 18 states, including my colleagues in the Subcommittee on Immigration, Representatives Blackburn, Flake, Hart, Berman and Sanchez wrote to you, Director Aguirre, indicating the severity of this backlog problem.
In my home state of California, United States citizens have been separated from their spouses, parents, and even their children for at least a year just because of the backlog. It's worse in Nebraska and Texas where the wait is at least one and half years. United States companies seeking individuals with extraordinary ability have to wait between one to two years. These are scientists and researches with Nobel Prizes who will invent the cure for cancer or develop the next new technology to help our country lead in areas of research, science, and technology.
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We have reached the twenty-first century, but our immigration services are still functioning in the twentieth century. CIS is operating on a paper-based system that is completely inefficient. Yet, the technology is available today to bring our immigration systems up to speed with the rest of this country. We continue to issue millions of paper I-94's making it virtually impossible to enter that information in appropriate databases. We have no biometric standard to help us secure the identification of immigrants and to provide a much more accurate system of cataloging immigration petitions. We have not been able to consolidate our databases to eliminate duplication, inefficiency, and more importantly, to help us identify those that seek to do us harm.
You can imagine my frustration with this inept system. Fixing immigration services must not only be a priority, it must be accomplished. As you know, each one of these backlogged petitions represents a United States citizen simply asking our government to allow them to be near their loved family member, or a United States company trying to bring in highly-qualified researchers, scholars, and other necessary employees. Every day that goes by with this backlog is another day lost with a loved one or another day where a United States business is unable to have a complete workforce that enables a strong American economy.
I look forward to this hearing and hope that this will finally be the turning point towards efficient, accurate, and secure immigration services.
LETTER TO U.S. CIS DIRECTOR EDUARDO AGUIRRE SUBMITTED BY THE HONORABLE ZOE LOFGREN
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PREPARED STATEMENT OF THE HONORABLE LINDA T. SÁNCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
INTRODUCTION
I'd like to thank Chairman Hostettler and also Ranking Member Jackson Lee for today's hearing. The issue that we are examining today, the immigration backlog and its detrimental impacts, is an issue that my Democratic colleagues and I have said over and over again it critical to fixing our broken immigration system.
We made backlog reduction one of the top priorities of the SOLVE Act (H.R. 4262), that we introduced on May 4th. And I urge the Chairman will follow up this hearing on reducing the immigration backlog with a markup of the SOLVE Act, so we can make immigration backlog reduction the law.
We need to reduce the immigration backlog because the processing delays are keeping immigrant families apart for years, sometimes decades. Thousands of immigrants follow the rules and submit their visa applications like they're supposed to, only to end up waiting for years to reunite with their spouses, children, or parents because of the backlog. One of the main reasons why immigrants come here illegally is to reunite with members of their family. Simply put, the visa backlog is one of the main causes of illegal immigration in this country.
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And what is the Administration doing about the backlog problem? If you've read the papers lately, you'd think their solution was to perform random immigration sweeps.
STORIES ABOUT SWEEPS
Last week, there were several newspaper reports that more than 200 immigrants were arrested in the Inland Empire in Southern California. According to reports federal agents were interrogating and arresting immigrants outside supermarkets, outside restaurants, as they got off buses on their way to work, and they were even stopping cars at roadside checkpoints.
Any person of Hispanic appearance or descent was a target of the sweeps. The agents stopped a Pasadena City College student, legally in the U.S. on a student visa, and interrogated him on the street about his immigration papers. The agents then drove the student to his home and forced him to produce his student visa papers to prove he was legal. In another incident, a latina waitress named Lourdes Rangel, a U.S. citizen, witnessed men in white vans stopping cars and interrogating drivers. Some of the agents questioned her and demanded she show them proof of her citizenship.
These extreme and senseless arrests do nothing to fix our immigration system. The only thing they do is to create fear and panic in our local communities. A school in Pasadena reported that 30% of the students skipped school. Restaurants, stores, and doctors offices were empty last week. Many said they were inundated with calls asking if it was safe to come and buy food and clothes or get medical care.
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The sweeps were obviously based on racial profiling and not on any evidence that the victims were in the country illegally. The U.S. Bureau of Customs and Border Protection claims the sweeps were neither racial profiling nor an agency-wide policy. But I find it hard to believe race didn't play a factor in the interrogations when 90% of the arrests were of Mexican nationals. MALDEF is investigating the sweeps to see if the sweeps violated the victims due process rights or were unreasonable searches and seizures.
FAILED ADMINISTRATION EFFORTS TO REDUCE THE BACKLOG
Constitutional violations and random race-based arrests are not the way to deal with illegal immigration. The Administration's $500 million initiative to reduce the visa backlog to 6-month processing time by 2006 is an excellent idea, and I urge the President and his Administration to make sure this idea becomes a reality.
Likewise I urge the President to give the same priority to backlog reduction as he does to efforts to deport hard-working, law-abiding immigrants. The last time Mr. Aguirre testified before this Subcommittee we discussed how only $60 million in additional funds were proposed for backlog reduction in the President's DHS FY 2005 budget proposal. This sum paled by comparison to the $281 million for ''enforcement'' programs in the President's budget proposal.
We need to make visa backlog reduction a much higher priority. There are 6 million visa applications waiting to be processed. That equates to millions of separated families, and the possibility for millions of immigrants to fall into illegal status. Processing these applications in a timely way is just as important as enforcement efforts to fixing our immigration system and making our borders safe and secure.
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I hope that this time next year, Mr. Aguirre is testifying before this Subcommittee and telling us how successful the reduction plan is, that the backlog has already been dropped by 50%, and will be at zero in 2006.
CONCLUSION
Again, I thank the Chairman and Ranking Member for convening this hearing. I also thank our witnesses for taking the time to come here and give us their testimony about how to fix the visa backlog problem.
Mr. Chairman, I am working on a letter to President Bush and Secretary Ridge expressing concern about the immigration sweeps in Los Angeles. The letter will be completed shortly and I ask unanimous consent to submit that letter, as well as a letter from the Congressional Hispanic Caucus addressing the same issue, into the record for this Subcommittee hearing.
Thank you and I yield back.
LETTER TO PRESIDENT GEORGE W. BUSH AND THE HONORABLE TOM RIDGE, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, SUBMITTED BY THE HONORABLE LINDA T. SÁNCHEZ
LETTER TO ROBERT BONNER, COMMISSIONER, BUREAU OF CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, SUBMITTED BY THE HONORABLE LINDA T. SÁNCHEZ
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PREPARED STATEMENT OF THE HONORABLE STEVE KING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA
I make these remarks in response to the opening statement of the gentle lady from California, Ms. Sánchez, in the Subcommittee on Immigration, Border Security, and Claims Hearing on Immigration Backlog on June 16, 2004.
I wholly support an immigration policy designed to enhance the economic, social and cultural well-being of the United States of America. Immigrants have made, and will continue to make, a valuable contribution to our nation. The values shared by our civilization, founded on a heritage of western civilization religious freedom and free enterprise capitalism, serve immigrants and native-born alike.
As a sovereign nation, we must control our borders. We must ensure that terrorists do not infiltrate the United States. We must tighten and strengthen border control efforts so that illegal aliens do not enter our country. Perhaps most our important, yet most neglected duty is the enforcement of our immigration laws in the interior of our country.
Ms. Sánchez stated that, after a recent immigration sweep in which over 200 illegal aliens were arrested, the supermarkets, restaurants, and doctors offices were empty, and that thirty percent of students in a school in Pasadena were absent from school. I must admit, I am a bit baffled about the point of Ms. Sánchez's story. If people are in our country legally and have the proper, required documentation, they should have no fear of immigration law enforcement efforts. If, by chance, they are improperly deported, as Director Aguirre explained, they would be the first allowed to reenter. In reality, however, we all know how long deportation proceedings last and how many opportunities a legal immigrant would have to prove his or her legal status before being deported.
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Ms. Sánchez set forth the argument that recent interior enforcement in her home state of California has been based solely on racial profiling, not on any evidence that those who are stopped were in the country illegally. Here is how I see this situation: Our immigration policy exists to distinguish between those who are American citizens or those who are in our country legally and those who are not. Asking those who are or appear to be of another nationality to prove their legal status is not racial profiling—it's smart law enforcement and it protects our nation's security.
In order for our immigration laws to have any effect, illegal aliens must know, in no uncertain terms, that we intend to enforce those laws. If caught, no matter how, they will be deported as soon as possible. Legal immigrants who have the proper documentation have nothing to fear from our system.
I hope that this Congress will be vigilant in our oversight of the enforcement of existing immigration laws and make necessary changes to existing laws. Thank you.
PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS
We had a hearing on the backlog of immigration benefits applications last week at which the Director of the U.S. Citizenship and Immigration Services (USCIS), Eduardo Aguirre, Jr., presented a Backlog Elimination Plan. Today, we will hear about how the backlog affects people who are waiting for applications to be processed, and we will hear views on the Backlog Elimination Plan. Also, the Citizenship and Immigration Services Ombudsman, Prakash Khatri, will present the first Ombudsman's Annual Report. His office is a separate entity within the Department of Homeland Security (DHS). The benefits applications backlog is one of many issues that his office addresses.
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As of the end of 2003, USCIS had more than 6 million benefits applications. It would not be appropriate to consider all of these applications backlog cases. USCIS defines ''backlog cases'' as applications that have exceed their cycle time. A ''cycle time'' is the number of months that an application should take to process. The cycle time for a naturalization application or an application for adjustment of status is 6 months. Other applications have shorter cycle times, but none has a cycle time that is longer than 6 months. Using this definition, USCIS calculated that the backlog at the end of 2003 was approximately 3.7 million cases.
In order to eliminate this backlog, USCIS plans to re-engineer and automate workflow processes to achieve greater efficiencies; update policies and procedures to streamline adjudications and increase the percentage of cases completed at initial review by an adjudicator; manage production against milestones; and, work with the Office of the Ombudsman on pilot projects to test alternative processing approaches and new applications of proven off-the-shelf technology. According to Director Aguirre, USCIS will eliminate the backlog by the end of FY2006.
Director Aguirre has assured us that he will include quality controls in implementing the Backlog Elimination Plan. I think that it is particularly important to ensure that the increased attention to production rates does not adversely affect the quality of initial level decision-making. I would not like to see an increased need for appellate review on account of hastily rendered initial decisions.
The milestone system is one of the most important parts of this plan. USCIS will set these production goals for measuring its progress and issue quarterly reports on whether the goals are being achieved. I am hopeful that these evaluations will be effective in keeping the plan on track. I have some concerns, however, about what USCIS will do if the milestones are not reached. It takes time to obtain additional resources. For instance, if USCIS needs additional personnel, it will have to recruit and train new personnel before they can help in eliminating the backlog.
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I also am concerned about the difficulty that people are having in getting information about their benefits applications. Prior to June 9, 2003, calls could be made to immigration officers at Service Centers to ask questions about the status of cases, to clarify and correct problems, and to inquire about filing procedures. Now, inquiries are made through an 1–800 number system. This system does not provide a meaningful source of information. As outside contractors, the 800 number operators usually are unfamiliar with immigration laws and procedures. They are given very basic scripts from which to field calls, and they only have access to information already provided on the USCIS website's case status inquiry pages.
The 800 number operators can transfer calls to a Second Tier information officer, but the operators are restricted as to the types of cases that they can refer to the Second Tier. Also, I have heard claims that the Second Tier officers frequently just tell callers to write a letter to the Service Center.
I urge USCIS to work with the Ombudsman, Mr. Khatri, to develop other solutions. For instance, my office has heard considerable praise for a division within the California Service Center that is devoted exclusively to answering public inquiries about pending cases and helping to resolve problems.
Thank you.
LETTER FROM THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION (AILA), SUBMITTED BY PAUL ZULKIE
LETTER TO THE HONORABLE EDUARDO AGUIRRE, JR., DIRECTOR, BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES (BCIS), SUBMITTED BY PAUL ZULKIE
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RESPONSE TO QUESTIONS SUBMITTED BY REP. ANTHONY WEINER TO THE HONORABLE PRAKASH KHATRI
Khatri.eps
RESPONSE TO QUESTIONS SUBMITTED BY REP. ANTHONY WEINER TO MS. ELIZABETH STERN
SternA.eps
SternB.eps
RESPONSE TO QUESTIONS SUBMITTED BY REP. ANTHONY WEINER TO MR. PAUL ZULKIE
Zulkie.eps
(Footnote 1 return)
AILA supports security checks as an important tool to enable our government to identify and pursue the tiny handful of intending immigrants and visitors who wish to do us harm, and separate them from the overwhelming majority who wish only to contribute to this country and build a better life for themselves and their families.
(Footnote 2 return)
There was an increase in filing volume in April, but this was due to applicants rushing to get their filings in before a large fee increase took effect at the beginning of May.