Mark A Ivener, A Law Corporation

Witnesses Discuss Controversial DHS OIG Report at House Hearing

The House of Representatives’ Subcommittee on Immigration held a hearing on February 15, 2012, “Safeguarding the Integrity of the Immigration Benefits Adjudication Process,” at which witnesses discussed a new report by the Department of Homeland Security’s (DHS) Office of Inspector General (OIG). Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing. Witnesses included Alejandro Mayorkas, Director, USCIS; Charles K. Edwards, Acting Inspector General, Department of Homeland Security (DHS); Mark Whetstone, President, National Citizenship and Immigration Services Council and American Federation of Government Employees, AFL-CIO; and Bo Cooper, Partner, Berry Appleman and Leiden LLP.

Chairman Smith noted that DHS’s Inspector General responded with a report in January 2012 based on a request from Sen. Chuck Grassley (R-Iowa) about whether “senior [USCIS] leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible.” The OIG report, Rep. Smith noted, states that “nearly 25 percent of immigration service officers who responded to the IG survey ‘have been pressured to approve questionable applications.’ ” He said, “This rubberstamp process leaves an ink trail of fraud and abuse.”

Inspector General’s report

In response to Sen. Grassley’s request, the Inspector General interviewed 147 managers and staff, received 256 responses to an online survey, and reviewed USCIS policies related to the effort to detect benefit fraud. The report was based on testimonials, not empirical data. The report recommended process improvements, such as instituting more training and collaboration to improve the fraud referral process; developing additional quality assurance or supervisory review procedures to strengthen identification of names and aliases of those seeking an immigration benefit; performing nationwide onsite outreach efforts to discuss the performance management system with Immigration Service Officers (ISOs); developing standards to permit more time for an ISO’s review of case files; revising policy on requests for evidence (RFEs) to clarify the role that the requests play in the adjudication process; and developing a policy to “establish limitations for [USCIS] managers and attorneys when they intervene in the adjudication of specific cases.” The report stated that “special treatment of complainants fosters a sense among ISOs that USCIS inappropriately grants benefits in certain cases.”

The report noted that “[t]here may be a basis for clarifying adjudication policy for O visa petitions. A low approval rate is not one of them.” The Inspector General found that O visa petitions are granted at a high rate. “Quality assurance information we examined demonstrates that excessive O visa approvals are more likely than denials.” The report stated, “From January 2008 through March 2011, the California and Vermont service centers approved 40,719 of 44,386 O visa petitions (91.7%). This approval rate exceeds the approval rate for many other nonimmigrant worker petitions. During the same time period, the two centers approved 78.5% of H-1B (specialty occupations) and 76.1% of L-1B (specialized knowledge worker) petitions.”

The Inspector General’s report noted, however, that: (1) the testimonial evidence shared by interviewees may not represent views shared by other employees; (2) USCIS has taken action to diminish threats to the immigration benefits system; (3) general employee concerns about the impact of production pressure in the quality of ISO decisions “do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats; (4) “[n]o ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats”; and (5) “[e]ven those employees who criticized management expressed confidence that USCIS would never compromise national security on a given case.”

The report concluded, however, that “[e]ven with the additional security checks and process improvements USCIS has made in the past several years, national security and fraud concerns may require more thorough review of immigration applications and petitions.” The OIG noted that “[a]dditional documentation, or further insight gained through more interview questions, would ensure that ISOs have greater confidence before making a decision.” Also, the report suggests that “Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions.”

Director Mayorkas’ testimony

Director Mayorkas said that early in his tenure at USCIS, having come to the agency in August 2009, he decided that USCIS must enhance the emphasis on quality in its adjudicative approach, meaning that “immigration benefit decisions are informed, adhere to the law and the facts, are made in a timely manner, and further the integrity and goals of the immigration system.” He said he realigned the agency’s structure to institutionalize a culture of quality and created the Fraud Detection and National Security Directorate (FDNS), previously an office within a directorate. Mr. Mayorkas outlined various anti-fraud and national security efforts his agency has taken. He said that if any supervisors are instructing employees to “be fast at the expense of quality,” that should be raised to top leadership.

Mr. Whetstone’s testimony

Mr. Whetstone said that USCIS headquarters has heard for years staff recommendations to allow its adjudicators more time to review files, but little has happened. He said that quantity-based production standards continue to be perceived as having a major impact on adjudicators, noting that several officers reported working through lunch and rest breaks to reach quota levels necessary to attain a satisfactory rating. He said that production pressure has never been reduced. Mr. Whetstone also noted a lack of sufficient anti-fraud training.

Mr. Cooper’s testimony

Mr. Cooper noted that he was an attorney for the former Immigration and Naturalization Service for over a decade, and served as the agency’s General Counsel from 1999 to 2003. He also works closely with Compete America, a coalition of corporations, universities, research institutions, and trade associations that advocates for reform of U.S. immigration policies on high-skilled foreign professionals. He took issue with several of the Inspector General’s conclusions and recommendations, stating in written testimony that they “lack foundation,” are contrary to what actually happens, and “would be deeply problematic if they were to gain acceptance and inform policy choices.” He said that the report’s conclusions “rest in key respects on a deficient base of information,” noting the lack of data and the report’s reliance on a limited number of interviews and surveys. He said that the limited interviews and surveys could be seen as a starting point but that instead of being considered preliminary feedback, the report draws “very serious conclusions.”

Mr. Cooper said that USCIS has released official data since the report came out. He noted that recent analysis shows that the data refute concerns “that USCIS may be institutionally biased toward unjustified approvals and that the agency observes policies that would suppress RFE issuance.” The data tell the opposite story, he said: “Particularly with respect to the key nonimmigrant categories for foreign professionals, denial rates and RFE rates have risen very sharply in recent years.”The “most startling exampl

The “most startling example,” Mr. Cooper said, appears in the L-1 program, which is used by multinational corporations to transfer managers, executives, and specialists into the United States. Noting that such visas “are an essential component of a huge range of productive economic activity in this country,” he said that L-1 visas are critical to attracting foreign investment that supports the creation of jobs for U.S. workers and are critical when U.S. companies acquire companies based oversees and need to have the acquired company’s specialists come to the United States to integrate their expertise and processes. L-1 visas are also critical to companies who need to bring specialists from their overseas affiliates into their research centers and operations in the United States, he noted. “Without predictable, reliable access to these visas, employers find themselves having to move jobs and projects to other countries.”

The data for employees with specialized knowledge in the L-1B program “shows a steep rise in denials and requests for evidence beginning in 2008,” he said, noting that the denial rate for L-1B petitions more than tripled in 2008 and is now at nearly quadruple the pre-2008 rate, at 27 percent in 2011. The RFE rate change is even starker, he said. From 2005 to 2011, the rate soared from 9 percent to 63 percent of L-1B cases.

He also noted that in the L-1A program for managers and executives being transferred within multinational corporations, the RFE rate rose from 10 percent in 2005 to 51 percent in 2011. Denial rates rose 75 percent over five years, from 8 percent in 2007 to 14 percent in 2011. In the H-1B program for professionals in specialty occupations, the denial rate increased from 11 percent in 2007 to 17 percent in 2011. Over a quarter of all H-1B filings generated an RFE in 2011.

Seen in the light of this data, Mr. Cooper said “there is no basis for the concern expressed in the OIG report that USCIS has an institutional bias in favor of approvals or against RFEs.” In fact, he said, the data show the opposite trend. Noting that USCIS said in its response to the OIG report that it is reviewing its RFE policy and aims to issue new RFE guidance this year, Mr. Cooper recommended that the new policy reflect “the needs of today’s business environment and the innovation economy,” and that it be monitored carefully once put into practice.

U.S. Chamber of Commerce letter

The U.S. Chamber of Commerce submitted a letter for the hearing record that said the OIG report’s conclusions were not statistically valid and were inconsistent with the experiences of the Chamber’s members in dealing with USCIS. The Chamber challenged “the notion that a few employees at the agency responsible for adjudicating benefits for the nation’s immigrants can, or should, drive changes in the burden of proof or other legal criteria impacting all foreign nationals and their sponsoring employers entitled to benefits under our immigration laws.” The Chamber echoed Mr. Cooper’s concerns that the OIG report draws conclusions that are too broad in relation to the interview and survey results upon which they are based. The letter includes examples of companies’ experiences of visa denials and RFEs that delayed or prevented the companies from moving forward with new product development or hiring for U.S.-based manufacturing and other jobs.

The Chamber’s letter also notes that “companies have not been able to manage their intracompany transfers of specialized knowledge staff with any predictability.” The letter identified four critical issues companies recently identified during a January discussion hosted by the Chamber on L-1B law and policy. that result in increased L-1B delays, denials, and inconsistency: (1) an improper focus on numbers of similarly situated staff; (2) an improper focus on the O-1 standard of accomplishment; (3) failure to recognize legitimate business requirements; and (4) improper de novo review of extensions. The Chamber noted that these “four agency misconceptions” have led to “an unfounded narrowing of the definition of specialized knowledge.”


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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.