Hearing of the House Judiciary Committee's Immigration, Citizenship, Refugees, Border Security and International Law Subcommittee: Wasted Vistas, Growing Backlogs

Hearing of the House Judiciary Committee's Immigration, Citizenship, Refugees, Border Security and International Law Subcommittee: Wasted Vistas, Growing Backlogs

REP. LOFGREN: The hearing on the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law will come to order.

First I'd like to offer my apologies for my tardiness. I had another obligation with the speaker that went longer than expected.

I'd like to welcome everyone to this hearing to examine the consistent failure of our immigration agencies to issue all the family and employment-based immigrant visas that are authorized already under law each year, despite the ongoing demand for such visas.

I think it is a little bit ironic that in a hearing to examine why agencies cannot issue visas on time each year, that we also did not timely receive the testimony from the agencies before us today. We only received the Department of State's testimony at a little after 5:00 last night, the USCIS at a little after 6:00 last night, with revised testimony at 9:00 this morning.

And I just would like to ask -- the rules of the committee require the submission of testimony substantially prior to the day before. I can recall a time when Mr. Sensenbrenner refused to allow then the commissioner of Immigration to even testify because his testimony was late. I'm not going to do that today, but in the future I expect the testimony to be delivered in accordance with the rules.

There are a limited number of visas available each year to immigrate to the United States, (a floor of ?) 226 preference visas per year for family-based immigrants and 140,000 per year for employment-based immigrants. Each year the backlog of people waiting to immigrate legally to the United States grows larger. Approximately 4 million family-based immigrants are believed to be caught in the legal immigration backlog today, while another 400,000 to 500,000 are believed to be caught in the employment-based backlog.

Despite these growing backlogs, the USCIS and the Department of State regularly failed to issue the legally authorized number of immigrant visas each year. They've only met or exceeded the floor of family preference visas in five out of 16 years, and only seven out of the 16 years for employment-based visas since '92.

Most recently, the Department of Homeland Security Office of Immigration Statistics observed in its annual flow report for U.S. legal permanent residents that legal immigration decreased by 17 percent in 2007, quote, "due primarily to application processing issues at USCIS," unquote.

To date there has been little public examination of the reasons for the ongoing failure to issue the legally authorized number of immigrant visas each year when there's a clear demand by qualified applicants for these visas. The only recent examination of this problem is by the USCIS ombudsman 2007 annual report, which found that immigrant visas have gone unused due to gaps in the accounting of cases by USCIS, USCIS not processing enough pending applications in a timely manner, and finally, the imprecise art, if it can be called that, of predicting work flows and demand surges at the three federal agencies who each play a role in adjudicating applications, the Department of State, USCIS, and the Department of Labor.

My colleague, the former chairman of the Judiciary Committee, Congressman Jim Sensenbrenner, and I have developed a proposed legislative fix to not only recapture these unused visas but also to reform the process that forces us to lose the visas for future use.

I look forward to the testimony today to help us better understand the problems that face the agencies charged with issuing visas so that we may not only address the problems with an appropriate administrative solution, but also determine whether our proposed legislative fix is the right legislative tool to prevent the loss of visas in the future.

I would now recognize our distinguished ranking member, Steve King, for his opening statement.

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REP. LOFGREN: Thank you. The gentleman yields back.

In the interest of proceeding to our witnesses, and mindful of the schedule, other members are asked to submit their written statements for the record within five legislative days. And without objection, all opening statements will be placed into the record.

And without objection, the chair is authorized to declare a recess of the hearing at any time.

Today, we will hear from witnesses from USCIS and the Department of State to help us consider the important issues before us. First, it's my pleasure to introduce Michael Aytes. In 2006, Mr. Aytes was appointed the associate director for Domestic Operations for USCIS. Since April of 2008, he has been serving as acting deputy director of USCIS. He began his career in the 1970s as a federal employee, where he served as an Immigration inspector for the INS.

Next, I would like to introduce Donald Neufeld. In 2007 Mr. Neufeld became the deputy associate director for the Office of Domestic Operations at USCIS. He is currently serving as the acting associate director for Domestic Operations. He began his career with the Immigration and Naturalization Service in 1983.

I'm also pleased to welcome Stephen A. "Tony" Edson. Mr. Edson joined the U.S. Foreign Service in 1981 and is currently service as deputy assistant secretary of State for Visa Services in the U.S. State Department's Bureau of Consular Affairs. Prior to that, he served as managing director of Visa Services and senior adviser for strategic planning to the Visa Services directorate from 2001 to 2005.

He graduated from the University of Kansas with a Bachelors in East Asian Language and Culture in 1980; and he holds a Masters in Management from the Sasin Graduate Institute of Business Administration at Chulalongkorn -- I can't pronounce the, Chulalongkorn University in Bangkok -- I'm sure he could pronounce it better than I; and a Masters of Science degree from the National Security Strategy, from the National War College in Fort McNair, Washington, DC.

And finally, we welcome Charles Oppenheim. Mr. Oppenheim joined the Department of State in 1978, and has worked as a consular officer in the Bureau of Consular Affairs since 1979. In 1998, he was appointed to the position of chief of the Immigrant Visa Control and Reporting Division in the Office of Field Support and Liaison. He is the State Department's expert in visa database management and statistical reporting on visa-related information. He's a native of (Richmond ?), Virginia, and a graduate at the University of Richmond.

Now, your written statements will be made part of the record in their entirety. And we would ask that you summarize your testimony in about five minutes. When there's a minute left, the yellow light will go on to give you a little warning of that.

It's my understanding Mr. Aytes will testify on behalf of USCIS, and my Edson will testify on behalf of the State Department, but that all four of the witnesses will be available to answer members' questions. And I see that the witnesses' heads are nodding.

So, Mr. Aytes, if you could begin that would be terrific.

MR. AYTES: (Inaudible) --

REP. LOFGREN: If you could turn the microphone on. There's a --

MR. AYTES: Excuse me.

REP. LOFGREN: Much better. Thanks.

MR. AYTES: I apologize. Thank you for the opportunity to discuss the role of U.S. Citizenship and Immigration Services in processing visas, our ongoing cooperative efforts with the Department of State.

The Department of State actually administers the visa allocation program. Our role focuses on processing petitions for preference classification -- the front end of the process; and applications by persons already in the United States to become permanent residents -- referred to as adjustment of status.

In recent years, as you've alluded to, more than one million people have annually become permanent residents of the United States -- either by being issued an immigrant visa overseas by the State Department, or granted adjustment of status by USCIS, or the Executive Office for Immigration Review.

State and USCIS must work closely in this respect, because both organizations draw from the same pool of limited numbers. Close and careful coordination ensures that annual limitations are not exceeded, and also helps us jointly strive to use all available visa numbers to meet demand.

Last year, in Fiscal Year 2007, more than 1, 052,000 people became permanent residents. Fifty-nine percent were already in the United States in adjusted status. In concert with State, USCIS has made significant changes in recent years to maximize use of the limited numbers of visas available annually. This includes using the Recapture provisions that already exist by law.

Changes we have made include increased staffing; enhanced analytic capacity; more detailed and strategic management of our production; and close partnership with State to share greater information. This enhanced information exchange with State, in particular, helps us manage -- and they manage, the visa allocation process, and allows us to improve our target production to meet the needs for visa allocation.

By statute, an application for Adjustment of Status can only be filed if an immigrant visa is immediately available to the applicant. USCIS regulations define that to be if the priority date of the underlying petition is earlier than the cut-off date on the State Department monthly visa bulletin.

Because of these requirements, USCIS is unable to accept an application and begin the adjudication process in advance of visa availability, the way that State accepts applications for an immigrant visa. We are also unable, as a result, to limit the number of applications accepted in a given month to the actual number of visas available. Rather, as many as qualified can file for Adjustment of Status during the window provided by the visa bulletin.

This can lead to more applications than visas available, resulting in applicants being provided interim benefits such as work authorization and permission to travel until a visa number is available. Last July was a witness of that scenario. In some cases where visas are unavailable to each individual application accepted, the wait for some Adjustment of Status candidates in the employment categories will be measured in years.

Over the past few years, USCIS has built up an inventory of applications for some visa categories that cannot be adjudicated because the number of filings exceed the number of visas actually available. It has also, admittedly, built up a backlog of applications for some visa categories where competing adjudication priorities have prevented timely completion of cases.

USCIS has a fee structure now, and surge response plan that is financing the capacity enhancements necessary to eliminate the current Adjustment of Status backlog, and to sustain a higher capacity for timely adjudications going forward. To maximize visa number usage, while working office backlog, USCIS has adopted a production strategy that focuses on completing cases where visas are immediately available.

Preadjudication includes completing all required background checks and resolving all eligibility problems, except for visa availability. This allows a immediate approval, and visa number allocation, as visas become available.

USCIS works clearly with State, and more closely than ever to exchange information critical for their managing the visa allocation process. We are in weekly contact and share forecast and production information. We are also working together on a plan to forward all approved family-based visa petitions to the State Department to enhance their ability to accurately forecast demand for numbers.

Though we still have challenges to overcome, USCIS is currently showing improvements as a result of our process changes. For example, as of April 25th, 2008, USCIS has adjudicated over 65 percent of its FY2008 target for employment-based visas. With five months to go in the fiscal year, this is a strong start. We plan to continue implementing process improvements, and new reporting mechanisms to manage these important applications.

I look forward to updating you on our continued progress, and I'm pleased to answer any questions you may have.

REP. LOFGREN: Thank you.

We'd now be pleased to hear from you, Mr. Edson.

MR. EDSON: Thank you, Chairman. Chairwoman Lofgren, ranking member King, and distinguished members of the committee, it's a pleasure to be here this afternoon to provide an overview of the Department's role in managing and adjudicating immigrant visas, whose numbers are limited by law.

Let me first give you a broad view of visa processing and steps the Department has undertaken, and then I will focus on the specifics of the number allocation process for immigrant visas, as managed by our Immigrant Visa Control and Reporting Division.

The Bureau of Consular Affairs has made dramatic improvements to the visa process since 9/11, and continuously evaluates that process to identify new ways to enhance security and increase efficiency. We've mandated the use of an electronic visa application form for non- immigrant visas; we're beginning work on the immigrant visa version of that form; and we've transitioned to full electronic connectivity with our partner security clearance agencies. We've fully transitioned from two to 10 fingerprints to ensure consistent screening of foreign nationals entering the United States.

These enhancements have allowed us to improve service and security, despite dramatic annual increases in the volume of visa applications. Our transition to electronic processing also involves more effective use of backroom Domestic Operations at our National Visa Center in New Hampshire, where we manage cases; collect documents and fees from sponsors; perform initial fraud checks; and schedule appointments for a growing number of posts.

These strategies give consular officers overseas the ability to focus specifically on the task of visa adjudication that must be done abroad and permit them to make better decisions with the best possible information developed for them in advance so that interviews can be focused and targeted.

The Department of State is responsible for the allocation of numerically limited immigrant visa numbers under the authority granted by Section 203 of the Immigration and Naturalization Act. These visa numbers are allocated based on congressionally-mandated preferences that assign overall total limits for each category and per country limits within each category.

The Immigrant Visa Control and Reporting Division's main responsibility is the administration of this complex series of annual numerical limitations. Our goal is to have the issuance level come as close as possible to 100 percent of the numbers available this year -- each year without exceeding those limits.

We also want to maintain a steady flow of applications throughout the year to ensure appropriate use of government resources and to provide good customer service to the applicants. Over the past three years, we have a proven record of using over 95 percent of the annual worldwide numerical limit.

The department works closely with United States Citizenship and Immigration Service on data exchange to allow for maximum use of numbers under those annual limits and in a stable predictable manner. This is extremely important for the employment-based categories where CIS currently uses approximately 90 percent of all available visa numbers.

Section 203(g) of the INA directs the secretary of State to make reasonable estimates of the anticipated number use in order to maximize numbers under those limits. When making such estimates, it's necessary to take into consideration the number of variables based on the best information which is available to us. Should there be a change which could not be anticipated, it can have an impact on number use -- obviously. This makes the determination of the monthly cutoff date particularly difficult at the end of the fiscal year since there's little, if any, time to make adjustments to stay under the 100 percent.

While we always strive to reach that 100 percent, increasingly -- increasing our percentage above 95 percent is difficult as we are statutorily barred from exceeding the annual limits.

On a given day, immigrant visas are issued in about 130 embassies and consulates aboard. Adjustments of status which use the same numbers are granted at about 90 to 100 domestic USCIS facilities.

The Department of State tracks that daily number usage and requests from our consular sections abroad and from USCIS. On a monthly basis, the visa office determines the number of visas that can be allocated for each visa category to each country on that worldwide basis. As stated previously, our goal is to come as close as possible without exceeding it and we strive in increased cooperation with CIS to make our record even better.

Again, I thank you for the opportunity to testify, and I'm happy to take your questions.

REP. LOFGREN: Thank you very much and we will have some questions I'm sure.

I'll begin. I guess, let me start with USCIS because -- I'll start with this premise and it really is the basis for the bill introduced by myself and Congressman Sensenbrenner, which is that Congress enacted the immigration laws and we put a number in there, and the expectation is that those are the numbers that we -- in law that we would allocate and yet we have not.

And I don't want to just berate -- I mean, I'm searching for how we can help accomplish the goals that Congress has set into the law.

I hear the State Department's technology issue -- in fact, I had an opportunity to look at the London embassy a couple of years ago on the new technology -- it's very -- it's very cool.

Where are we in USCIS on the technology front so that -- is part of our problem -- our workflow problem a technology problem? We heard earlier in the year -- in last year about the transformation program; we haven't heard anything about it in a while.

Can you tell us what role that plays and where the transformation program and IT is?

MR. AYTES: The transformation is going through a procurement process right now. We anticipate awarding a contract to a prime vendor later this summer. We already have -- using some existing contracts -- a pilot in place that we are using to process orphan petitions. That has proven to be fairly successful.

You are correct -- one of the issues for us is having the technology infrastructure that supports the production management of cases. But one of the things that we found in working with State over the last few years is that part of our focus has had to shift. Traditionally, we have looked at processing cases on a first-in, first-out basis to be fair to all customers. Well, that's not the optimal model when it comes to trying to maximize visa issuance because the first -- the oldest case may be for an applicant who is going to have to wait a far lengthier period of time before they're going to be able to emigrate.

So now we are moving more and more toward processing petitions -- not just adjustment applications -- but petitions based on anticipated shifts in priority dates from the State Department. That is what has let us do a far better job this year with respect to adjustment applications and utilization of visa numbers.

REP. LOFGREN: Short of fully implementing the transformation program, what steps is the agency taking, particularly in light of last July's visa bulletin dust-up to ensure that it's going to actually adjudicates sufficient cases to use all the immigrant visa numbers this fiscal year?

MR. AYTES: That has to do with the increased coordination with the State Department, where we are talking weekly about moving priority dates forward. That is more of a joint discussion at this point than it was historically.

We're able to provide far more data to State with regards to our existing inventory so that they understand their chargeability and they can understand if they move a priority date forward what the anticipated yield might be in terms of additional applications for an immigrant visa or for adjustment coming forward. In those respects, I think we are making substantial progress.

REP. LOFGREN: What -- let me ask the State Department really the same question -- or a similar question -- what changes in the law could we make that would make it easier for you to do your job and allow all of the visas to be allocated?

MR. EDSON: I think the real idea after 2001 was a very good step forward in that regard. That eliminated the per-country limits if there were going to be otherwise unused numbers. Those per-country limits in earlier years had often prevented from having the maximum amount of numbers used. So that is a tremendous step.

Your -- the contemplated bill will be the final step, I believe, and it will allow us instead of having to have unused numbers fall across to the opposite category, they can be retained for use in that category the following year. That is a tremendous step forward and will allow -- if for one reason there was -- we were unable to use the numbers this year then we would have the following years to use them.

REP. LOFGREN: So that would give you a little leeway in your estimates -- you wouldn't have to hit perfection every --

MR. EDSON: Exactly. It's a perfect solution.

REP. LOFGREN: Well, that's good news.

The -- I think that the crossover of unused between family and business probably was established at a time assuming that there would be -- the reason for the use was lack of demand when, in fact, it's lack of processing.

So the whole assumption is incorrect, and I don't think it's working -- it's not working at all right now is what you're saying?

MR. EDSON: Correct.

REP. LOFGREN: Well --

MR. EDSON: The events have overtaken the original enactment of the bill.

REP. LOFGREN: Very good.

Well, I -- Mr. Sensenbrenner is a member of the full committee, not the subcommittee, but I'll make sure that he also knows that you're happy with that provision of the bill.

My time has expired, so I will turn now to Mr. King for his questions.

REP. KING: Thank you, Madame Chair. And again, gentlemen, I appreciate your testimony.

And I just -- you know, as I'm looking at these numbers and as I break some of my own numbers out and addressing Mr. Aytes testimony, my math comes out the statutory limiting, these categories we're talking about is 226,000 plus 140,000 so for a total of 366,000 annually -- and if that meets your numbers.

And then I look at the reported numbers here that for 2007 we reached the number of 194,900 in the family sponsored preferences, and in the employment-based preferences, we reached the number of 162,176. So adding those together, I come to 357,076 out of the 366 (thousand) available. Is that consistent with what you have for records in -- and I'm watching Mr. Oppenheim, so perhaps I should look -- send my question there.

MR. OPPENHEIM: The families total is actually approximately 203,000, so it was a little bit more.

REP. KING: So that would be another 9 (thousand) to 10,000 more, which -- Does that mean then that you've reached this limit almost perfectly, ninety-nine-point-something percent -- of the available slots for '07?

MR. OPPENHEIM: Within about -- 2007 we were under --

REP. LOFGREN: Could you turn your mike -- I think -- there we go.

MR. OPPENHEIM: During the course of the last three years, we've done about 95 percent of the limit. Last year there were approximately 22,000 unused in the family category, versus the limit.

One hundred percent of the numbers available in the employment category were utilized last year.

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REP. LOFGREN: I think if we can stay -- it's been less than an hour -- we might do a second round of questions since we've got you here and this is a technical issue but very intensely interesting to all of us.

I'm just looking at the visa bulletin. I don't know Mr. Oppenheim, but your name is famous when it comes to the art of predicting these visas. But, for example, if you are a member of a profession holding an advanced degree, or a person of exceptional ability, and that's been already -- you've been judged that personal of exceptional ability with advanced degree -- but you were born in China, you can't get a visa even though the Department of Labor has already said you've been offered a job that there's no American available American to fill, only those that filed in 2004 are getting their visas today. So -- and, as Mr. Gutierrez has mentioned, if you are the husband or wife of a lawful permanent resident of the United States, somebody who played by all the rules, and you were -- your spouse was born, you know, in the Philippines, you're only getting your visa this month if you filed in June of 2003. So we're keeping husbands and wives who are following the rules apart for a long time.

Is there any way to estimate -- I don't know if you had a chance to look at the bill that Mr. Sensenbrenner and I introduced -- what kind of relief would be given in the two cases I've outlined?

MR. OPPENHEIM: The recapture would, at this point, would be approximately 225,000 numbers combined, both family and employment. It would provide a fair amount of relief in the employment. We would be able to advance, for example, the China and India cutoffs in the second preference. Many of the employment categories are already current, and -- so it would provide some relief, not a lot.

REP. LOFGREN: Right. What about the husbands and wives who are separate?

MR. OPPENHEIM: The husbands and wives, the 90,000 -- 93,000 we would recapture, would be -- about 50 percent of those would potentially go to the husbands and wives based on the calculations -- the way the annual limits are determined.

REP. LOFGREN: Okay. So, it's not going to be immediate, but it would -- we'd --

MR. OPPENHEIM: It would be a first step.

REP. LOFGREN: -- be a first step to healing the pain.

One of the things that we used to have was a temporary visa so that spouses that are separated wouldn't have to be apart -- and that may be something we're going to want to take a look at if we proceed, if this doesn't really solve. You know, the idea that a husband and wife, when you take your marriage vows, you mean it, and then you have live apart for half a decade. That just doesn't seem really like the American way to me. So, in addition to this, maybe we need to explore other possibilities.

I'm wondering -- and maybe this isn't a fair question -- but the Department of State's technology seems to work fairly efficiently, and you have access to the databases. You can pull up the pictures and the biometrics and your network. One of the questions I have had is whether we could simply expand that system that already exists to the Department of Homeland Security and have one system rather than two competing systems. Do you think, either of you, whether that would be viable? What's the problem with that if there is a problem?

MR. AYTES: If I may, both those systems are somewhat tailored. We are working to try to share data more effectively through a data- share initiative and we are now importing information from their systems, such as biometrics -- photographs and identity information -- so that we can verify identity at an early step in the process, before we're issuing documentation. We are making steps in that respect. I think it would be very difficult for us to completely use one system to serve all the varying purposes and the services that we provide.

MR. OPPENHEIM: One of the -- we do coordinate very closely on our automation needs on information sharing and data, particularly at a technical level, database interoperability. One of the real lessons we learned after 9-11 was the importance of focusing on making our database systems interoperable rather than talking about monolithic unified systems. We have, in the State Department we have simple database, a corporate database structure, and then use applications that are tailored to the specific process, which would be different than the CIS process, to feed back into that back end. And we do share a common vision of the end of the transformation process being a completely sort of transparent view into each others dataset.

MS. LOFGREN: Let me just have a final question. Has the Department of State been involved in the development of the transformation plan in USCIS?

MR. OPPENHEIM: Certainly. I actually sit on the -- I forgot what it's called; the transformation steering committee, I think. But yes, we've been consulted all along.

MS. LOFGREN: Very good. We may want to have a hearing on the whole computer issue at some future date. I think we'll get really nerdy on you and take a look at it.

I'll defer to Mr. Lungren for his questions now.

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REP. LOFGREN: That's fine.

Let me just ask two remaining questions. And they're really, I guess, for you, Mr. Oppenheim, or Mr. Edson.

I think there's only two former immigration lawyers in the United States House of Representatives -- myself and Mr. Goodlatte. And we don't agree very often on immigration issues, but one thing we did agree on had to do with the per-country limitation.

We put a bill into the hopper earlier this week to eliminate the per-country limitation on the employment side and to ease it on the family side, to move up to 10 percent instead of 7 percent.

And the question is, is that -- would that -- if that's enacted, is that going to be hard to administer, from your point of view, or not a problem to administer?

MR. : From a numeric -- from my standpoint, no, it would not be difficult to administer. The problem we would see, potentially, overseas and with the Service is the surge of applicants. It would be resource implications.

MR. : Just to follow up on that, given particularly China and India, where so much of this work is done and where are resources -- or, our facilities are already used at full capacity, that would be -- the administrative issue would be catching up with the ability to process timely.

REP. LOFGREN: It's for employment, not for the --

Let me ask -- and this is something I've always wondered -- if you take a look at brothers and sisters, the most backlogged is fourth, from the Philippines, people who filed March 8th of 1986 are getting their visas today.

And I've often wondered, I'll bet you there's people there who've died, who -- it's so long -- or who have changed their minds. I mean, maybe they filed, they were 20. Now they're 45 and they don't want to leave any more. Do we have any way of knowing how many people are queued up in these very old categories?

MR. : Since you mentioned the Philippines fourth, there are over 150,000 Philippine fourth preference applicants that have registered abroad, versus a limit annually of approximately 4,500. That --

REP. LOFGREN: And do they keep their status --

MR. : (Inaudible.)

REP. LOFGREN: Okay.

MR. : Now, one of the -- as you mentioned, it is hard to verify, and that's one of the variables which I have to take into consideration, is how many people will actually appear for their interview, assuming that they're still out there?

REP. LOFGREN: I see.

Well, at this point, we have run out of questions, run out of time. We will keep the hearing record open for five legislative days, and if members have additional questions, we will forward them to you. We ask, in that case, that you answer them as promptly as possible so they can be incorporated into the hearing record.

And with that, thanks to all who've participated, and this hearing is adjourned.

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