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AILA President's Testimony on Immigration Backlogs

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  • AILA President's Testimony on Immigration Backlogs

    Testimony of
    Paul Zulkie
    on behalf of the
    American Immigration Lawyers Association
    on
    Families and Business in Limbo: the Detrimental Impact of the Immigration Backlog
    before the
    Subcommittee on Immigration, Border Security and Claims
    House Judiciary Committee
    June 23, 2004
    Washington, D.C.
    1
    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.
    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
    2
    case sits on a shelf for 26 months until an adjudicator picks it up and begins to consider
    it.
    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.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.
    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:
    1 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.
    3
    "¢ 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 ***
    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.
    "¢ 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
    4
    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.
    "¢ 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.
    "¢ The backlogs have lead to still other negative consequences:
    o 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.
    o 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
    5
    previous status in processing the extension. The result is that the applicant
    loses his ability to drive.
    o 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.
    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
    6
    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 refingerprinting
    is not in effect yet, we look forward to the day in the near future when
    it does take effect.
    "¢ 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.
    "¢ 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
    7
    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.
    "¢ 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
    8
    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 problemsolving
    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.
    "¢ 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 fullyinformed
    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:
    "¢ 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
    9
    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
    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 decisionmaking
    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.
    10
    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.
    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
    11
    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.
    "¢ 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,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
    2 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.
    12
    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.

    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.
    28ts4002

  • #2
    Testimony of
    Paul Zulkie
    on behalf of the
    American Immigration Lawyers Association
    on
    Families and Business in Limbo: the Detrimental Impact of the Immigration Backlog
    before the
    Subcommittee on Immigration, Border Security and Claims
    House Judiciary Committee
    June 23, 2004
    Washington, D.C.
    1
    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.
    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
    2
    case sits on a shelf for 26 months until an adjudicator picks it up and begins to consider
    it.
    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.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.
    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:
    1 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.
    3
    "¢ 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 ***
    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.
    "¢ 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
    4
    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.
    "¢ 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.
    "¢ The backlogs have lead to still other negative consequences:
    o 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.
    o 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
    5
    previous status in processing the extension. The result is that the applicant
    loses his ability to drive.
    o 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.
    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
    6
    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 refingerprinting
    is not in effect yet, we look forward to the day in the near future when
    it does take effect.
    "¢ 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.
    "¢ 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
    7
    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.
    "¢ 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
    8
    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 problemsolving
    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.
    "¢ 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 fullyinformed
    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:
    "¢ 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
    9
    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
    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 decisionmaking
    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.
    10
    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.
    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
    11
    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.
    "¢ 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,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
    2 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.
    12
    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.

    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.
    28ts4002

    Comment


    • #3
      This agency (USCIS) have some serious crisis within their community, much worse than the previous INS.

      Comment


      • #4
        Mo,

        It's not more serious than the old INS...IT'S EXACTLY THE SAME! All they did was change the name....as if just be changing the name and separating it into 3 pieces the problems would disappear. On the contrary, they created a new one (on top of all the old ones)...when it was ONE agency everyone could be tasked to do different functions. Investigations, Inspections, Deportation and Adjudications used to help each other out. Now that they are under 3 different umbrellas they do no cooperate and, in many cases, work that was previously done by one of the agencies has been unceremoniously dumped on another agency who they feel the work belongs to (e.g., deportation used to process suspension of deportation/cancellation of removal grants for a green card. They accumulated a backlog of some 1500 cases and then decided this isn't an "ICE function" this is a CIS function and dumped them on CIS. There is a lot of infighting now that didn't used to happen. I'm glad AILA told the truth about some things. What they didn't say (and never will) is what created the backlog in the first place.....245(i) and legalization. The first 245(i) authorization caused such a flood of applications that the old INS never recovered. The second 245(i) and the third added to what was already a big problem. One thing that is certainly the truth is the staff is not there to do the work and without that all the "plans" in the world are not going to help.

        Comment


        • #5
          Penny Wise Pound foolish. The story of our government.


          When the Irs decided to outsource back in the 80's all that resulted were massive amounts.. thousandsXthousands of income tax returns being thrown out in the dumpster never to be processed. they were disgruntled & couldnt handle the pressure.


          Take a look at our postal service now. 2 speeds.. SLow and Slower. Thanks to outsourcing and Temp help .. this service is not as reliable as when it was manned by government employees exclusively.

          Need I mention the Customer Mis-information line service... yikes!

          [Quote]
          "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"
          "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."

          In addition to that statement.. it would help undermine the security of the process of immigration to Privatize this branch. Imagine it would be much easier for terroist money to find its way into private contractors to get approvals on certain applicants. More easier access than it is now within the confines of USCIS.

          Sometimes you have to wonder ... What are they thinking ???

          Comment

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