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72–904 PDF 2012

SAFEGUARDING THE INTEGRITY OF THE 

IMMIGRATION BENEFITS ADJUDICATION PROCESS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

FEBRUARY 15, 2012 

Serial No. 112–94 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 15, 2012 

Page 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 3 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 5 

WITNESSES 

Honorable Alejandro Mayorkas, Director, U.S. Citizenship and Immigration 

Services 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Honorable Charles K. Edwards, Acting Inspector General, U.S. Department 

of Homeland Security 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

Mark Whetstone, President, National Citizenship and Immigration Services 

Council 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 59 

Bo Cooper, Partner, Berry Appleman and Leiden, LLP 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 64 

(1) 

SAFEGUARDING THE INTEGRITY OF THE IMMIGRATION BENEFITS ADJUDICATION 

PROCESS 

WEDNESDAY, FEBRUARY 15, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:40 p.m., in room 

2141, Rayburn Office Building, the Honorable Elton Gallegly 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, Lofgren, Gowdy, Waters, Gohmert, Jackson Lee, and King. 

Staff present: (Majority) Andrea Loving, Counsel; Marian White, 

Clerk; and (Minority) David Shahoulian, Subcommittee Chief 

Counsel. 

Mr. GALLEGLY. I call the Subcommittee to order. 

I welcome all of you here today. Congress designs our immigration policy to benefit the American people. When immigrants receive visas or citizenship that they are not entitled to, Americans 

are worse off whether it is workers, taxpayers or simply citizens. 

If there is a credible allegation that this is occurring, we have a 

duty to determine the truth. 

Such allegations were made by a January 2012 Department of 

Homeland Security Office of Inspector General report. The report 

was entitled ‘‘The Effects of USCIS Adjudication Procedures and 

Policies on Fraud Detection by Immigration Service Officers.’’ 

The inspector general found that U.S. Citizenship and Immigration Services adjudicators are not receiving adequate training to 

uncover fraud and immigration benefit applications. The IG found 

that USCIS performance measures favor quantity over quality. 

This encourages the rubberstamping of applications. 

The IG found that the adjudicators feel inappropriately pressured by supervisors and USCIS leadership to approve petitions 

that don’t meet the standards for approval. USCIS leadership 

seems to favor ‘‘get to yes’’ instead of ‘‘get it right.’’ 

Is it important that the adjudicators make their decision in a 

timely manner? Yes. But it is also important that they have adequate time and support to ensure that the individuals who receive 

immigration benefits, such as a temporary visa, permanent residency or citizenship are in fact eligible for those benefits. 

2 

Immigration benefit denial rates obtained from USCIS show a 

rise in denials in severalcertain categories between the years of 

2008 and 2010. Some will argue that this shows that there is no 

improper pressure on adjudicators. However, this rise in denials 

may simply be a result of adjudicators following the law, and the 

increased pressure by USCIS leadership to approve applications 

may be an attempt to reverse this recent trend. 

I know that many in this business community are concerned that 

their petitions for alien workers are being denied and they are 

being required to answer excessive requests for additional evidence, 

known as RFEs. 

But why did denial and RFE rates go up? It very well could be 

because of statutory changes that were implemented and major decisions that were issued. 

For instance, the changes made by the L-1 Visa Reform Act of 

2004 to prevent contracting-out of alien workers were not implemented by the agency wide level until 2008. As one would expect, 

there was a corresponding rise in USCIS denial rates in fiscal year 

2008. 

And the 2010 ‘‘Neufeld Memo’’ on H-1B visas issued by the 

USCIS Associate Director for Service Center Operations provided 

new guidance on what should be considered by employer-employee 

relationship between the petitioning company and the beneficiary. 

After that, the Government Accounting Office noted companies’ petitions were no longer being approved at previous rates. 

And the GST decision was issued by the USCIS Administrative 

Appeals Office in July 2008. It provided a new framework for adjudicators when determining whether or not a petition meets certain 

L-1B visa requirements. 

Both those who support and oppose this AAO ruling can agree 

that it has had the natural result of increasing subsequent denial 

rates in the L-1B category. 

But whatever may be the cause of the denial rates in a particular 

visa category for a particular year, USCIS’ own data shows that 

the overall denial rate for nonimmigrant worker visas has fallen 

over 30 percent since President Obama took office in 2009, and 

that the approval rate for all kinds of immigrant benefits is at an 

all-time high of 91 percent. 

There is never a legitimate reason to pressure adjudicators to 

deny petitions where the beneficiary is eligible for the benefit and 

there is never a legitimate reason to pressure adjudicators to approve petitions that do not meet the statutory requirements. 

But according to the inspector general, some USCIS adjudicators 

feel such pressure. That is why we are here today. We will receive 

testimony from the DHS inspector general, who will explain his 

January 2012 report findings. 

We will receive testimony from the president of the National Citizen and Immigration Services Council, which represents USCIS 

adjudicators. 

He will discuss how performance standards that emphasize 

quantity over quality imperil the integrity of the adjudicators’ process and we will hear from the USCIS director, Director Ali 

Mayorkas, who will help us determine whether or not there is a 

‘‘get to yes’’ mentality at the USCIS. 

3 

And with that, I would yield to my good friend, the Ranking 

Member, from my home state, California, the gentlelady, Ms. 

Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

There is an old parable about blind men and an elephant. One 

blind man feels the elephant’s leg, thinks it is a column. Another 

feels its tail, thinks it is a rope. Another feels the trunk and says 

it is a tree branch. Having felt only one part of the elephant, each 

blind man is in total disagreement with the other about what they 

are touching. 

And in some ways, although I have great respect for the inspector general and the mission of the IG to prevent and detect waste, 

fraud and abuse in government operations, that is kind of what we 

ended up with in this report. 

The IG system is really important. I am a big fan of the IG system. It is essential to get facts for Members of Congress so we can 

be guided in our policy making for an effective and efficient government. 

But a report that reminds me of the blind men with the elephant 

is not what we need and I am afraid it is what we got in this case. 

When I first received the OIG report, I did what I always do. I 

turned to the methodology page because a report is meaningless if 

its methodology is not sound. Are its surveys fairly worded and statistically valid? Does it include objective analysis of hard data? On 

these questions, I believe the report comes up short. The report 

does not review available statistical data. The OIG did not, apparently, seek input from outside stakeholders. It does not look like 

they talked to other government components, critical to an understanding of USCIS, such as the Ombudsman’s Office. 

Instead, the report is based almost entirely on 147 interviews 

and 256 self-selected responses to an online survey, representing 

just over 2 percent of the 18,000 people who work at the USCIS. 

In general, reports can be useful if the questions are useful. But 

the responses have to be not self-selected for bias, and what we 

have here, I am afraid, is a self-selected group of people who have 

a complaint. Their complaints may be valid but they are certainly 

not representative. 

For example, the report finds that there may be undue pressure 

on adjudicators based on the responses for the following question. 

Here is the question in the report: Have you personally ever been 

asked by management or a supervisor to ignore established policy 

or pressured to approve applications that should have been denied 

based on fraud or ineligibility concerns? 

Importantly, 75 percent of those who chose to respond said no 

but 63 individuals said yes. That is out of 18,000 people who work 

for the USCIS. But that doesn’t tell us very much about this response. 

We don’t know when they felt this pressure. Was it 6 months 

ago? Was it during the Reagan administration? We have no idea, 

from this report. And we don’t know whether it happened once or 

whether it was repeatedly, and we don’t know what the pressure 

actually was. 

4 

Was it a simple request to have the adjudicator look again at the 

facts of the case or something improper? There is no way to tell 

from the report. 

Yet, based on this slim reed, the report paints a picture of an 

agency in which almost every facet is tilted toward the approval of 

applications and petitions. Based on the interviews and survey responses, the report endorses the proposition that USCIS suffers 

from a culture of ‘‘getting to yes.’’ 

Now, this would be concerning if it weren’t so surprising because 

for the last several years I have repeatedly heard from interest 

groups, constituencies, the Chamber of Commerce, the business 

community, that the agency is actually suffering from the reverse 

problem, that they are saying no to cases that should be approved. 

American businesses in my district and elsewhere say that the 

agency has become more stringent, that the increase in denials and 

delays are unreasonable, that petitions that used to be approved 

quickly are now denied or slowed by lengthy requests for evidence. 

And they have shared some cases indicating that adjudicators may 

have altered long established requirements or tightened standards 

without notice to stakeholders or the Congress. 

They share examples of requests for evidence that really boggle 

the mind, such as asking, and I saw this, a well-established Fortune 500 company that employs thousands of people to provide 

leases and floor plans and fire escape routes to prove that they actually exist. 

When I first saw the report I asked my staff to request and review data for all the adjudications in the last decade, and I understand that upon receiving the report the majority made the same 

request. 

This data which, unbelievably, was not analyzed by the OIG, 

shows a sizeable increase in denial rates for key business visa categories and appears to support what I have been hearing from 

businesses for the last several years. In some categories, the denial 

and RFE rates have increased by 300 to 500 percent during the 

Obama administration. 

Now, I can’t tell and I am not claiming whether—what the right 

approval rate should be. You know, maybe it is too low now. Maybe 

it is too high now. You can’t tell from the report whether this is 

higher quality or adheres to law or whether it is more mistakes 

and, certainly, the OIG report gives us no guidance on that. 

I would take issue with some of the report’s recommendations as 

well. To end an informal appeals process and ‘‘special review of denied cases’’ is such a mistake. I can’t believe the OIG would have 

made this recommendation if they had engaged with stakeholders 

and reviewed some of the actual cases, and let me just give you a 

couple of examples. 

I mean, perhaps with one or two exceptions, virtually every 

Member of Congress has contacted the USCIS to ask for a review 

of cases that were erroneously denied and, certainly, I am among 

them. 

For example, I had a recent case in which the USCIS denied an 

employment-based petition because the adjudicator determined 

that the company only had $15,000 in annual revenue and therefore couldn’t possibly pay the worker. 

5 

It turned out, however, that the adjudicator had failed to note 

that the figures were listed in thousands. It was actually $15 million in revenue. So the OIG’s recommendation for a formal appeal 

process would have required a 2-year process just to point out that 

the person in the bureaucracy misread the file. Truly, that couldn’t 

be a wise response. 

I had another case where an H-1B worker with an approved employment-based green card petition had his application for adjustment denied because he did not provide evidence establishing eligibility for the Cuban Adjustment Act. 

Well, the applicant wasn’t Cuban and he wasn’t applying under 

the Cuban Adjustment Act. He was applying under a different provision of the law. Under the proposal, this individual with an approved petition would have had to go back to his country in Europe 

for 2 years because the USCIS employee screwed up. How could 

that be a reasonable response to somebody making a mistake in 

the bureaucracy? 

I think, finally, in light of the Committee Chairman’s op-ed in 

the Politico today entitled, ‘‘Obama’s Lax Visa Policy Imperils 

U.S.’’, I do believe one part of this report needs to be emphasized 

and here is a direct quote from the report: No ISOs—that is immigration service officers—presented us with cases where benefits 

were granted to those who pose terrorist or national security 

threats to the United States. Even those employees who criticize 

management express confidence that USCIS would never compromise national security on a given case. 

I yield back, Mr. Chairman. 

Mr. GALLEGLY. The gentleman from Texas, the Chairman of the 

full Committee, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

The vast majority of those who apply for immigration benefits 

have no ill intent toward the U.S. They come here for legitimate 

work or travel. But American immigration benefits, whether they 

are in the form of H-1B visas, permanent residence for relatives of 

U.S. citizens, employment authorization documents or naturalization are of great value around the world. 

For that reason, there are foreign nationals who will do and say 

whatever they think will get their benefits approved—forge documents, get bogus employers to sponsor them, and even deny their 

terrorist ties. So we must have policies in place that help ensure 

we will not admit those who intend to cause us harm or make a 

mockery of our immigration system. We need immigration policy 

designed to protect American workers and taxpayers. 

Officers at U.S. Citizenship and Immigration Services are the 

first line of defense against those trying to come into the United 

States by fraudulent means. 

In 2002, the then General Accounting Office found that immigration benefit fraud was ‘‘pervasive,’’ ‘‘on the increase’’ and ‘‘rampant’’ 

at the Immigration and Naturalization Service. 

And in 2006, the now Government Accountability Office again 

found that, ‘‘although the full extent of benefit fraud is not known, 

available evidence suggests that it is an ongoing and serious problem.’’ 

6 

*The rate includes fraud and technical violations. 

GAO reported that the immigration officers interviewed felt management didn’t emphasize fraud control, but instead focused on 

‘‘production goals designed to reduce the backlog of applications almost exclusively.’’ 

Also in 2006, the Department of Homeland Security Office of Inspector General reported on a lack of incentives for USCIS personnel to combat fraud, as opposed to simply rubberstamping applications to get gold stars for improved productivity. 

The allegations of rubberstamping continued and whistleblowers 

began providing details to congressional investigators. 

In October 2010, Senator Chuck Grassley asked the DHS Inspector General to again look into whether, ‘‘senior U.S. Citizenship 

and Immigration Service leaders are putting pressure on employees 

to approve more visa applications even if the applications might be 

fraudulent or the applicant is ineligible.’’ 

Last month, the Inspector General released a report detailing 

findings based on Senator Grassley’s request. 

Specifically, the IG reported that the mindset of quantity over 

quality has not ended at USCIS. 

In fact, according to the report, nearly 25 percent of immigration 

service officers that responded to the IG survey ‘‘have been pressured to approve questionable applications.’’ 

This mindset is called ‘‘get to yes’’ regardless of the consequences. Where does it come from, rogue supervisors or from the 

very top of USCIS? 

Such pressure undermines the rule of law, the integrity of U.S. 

immigration policy and national security. This rubberstamp process 

leaves an ink trail of fraud and abuse. 

For instance, in 2005, the Office of Fraud Detection and National 

Security, FDNS at USCIS, reported a 33 percent fraud rate in the 

religious worker visa program. Following that disturbing find, in 

2008, USCIS issued a rule designed to strengthen the requirements 

for religious worker visa processing. The rule included a site visit 

requirement and last December FDNS issued a follow-up report 

noting a fraud rate of less than 6 percent in the program. 

And in 2008, FDNS found a 21 percent fraud rate in H-1B 

cases.* The FDNS report triggered site visits to H-1B employers 

which resulted in nearly 1,200 adverse actions by USCIS and the 

prosecution of 27 people. 

As long as FDNS is allowed to operate in an unhindered fashion 

it is an asset to USCIS and to all Americans. USCIS processes 

more than 6 million immigration benefits applications or petitions 

each year. That is no small job. 

And security should be the number-one priority in that process. 

At the same time, legitimate petitions should be approved in a 

timely manner. 

I look forward to the witnesses’ testimony so we can be assured 

that security is in fact the top priority at USCIS. 

Thank you, Mr. Chairman. I want to say also that I am going 

to need to go to another Committee hearing momentarily but I will 

return, I hope, in a few minutes for questions. 

Thank you. I yield back. 

7 

Mr. GALLEGLY. I thank the gentleman. 

We have a very distinguished panel of witnesses on our first 

panel today and I would just ask that you help us all by trying to 

keep your opening statement limited to the 5 minutes. But your 

statements will be made a part of our record of the hearing in its 

entirety. 

And so with that, let me introduce our two distinguished witnesses. First is Director Alejandro Mayorkas. Director Mayorkas 

has served as the director of the U.S. Citizenship and Immigration 

Services since 2009. 

Prior to his appointment, Director Mayorkas was a partner in 

the law firm of O’Melveny and Myers and before he served as the 

U.S. Attorney for the Central District of California. Director 

Mayorkas is a graduate of the University of California at Berkeley 

and holds a J.D. from Loyola Law School. 

Our second witness is Mr. Charles Edwards. Mr. Edwards is Acting Inspector General of the U.S. Department of Homeland Security. Prior to this position, Mr. Edwards served as a deputy general 

of the Department of Homeland Security and held leadership positions at several Federal agencies. 

Mr. Edwards is a graduate of Loyola College in Maryland and 

has a double Master’s degree in electrical engineering and computer engineering. 

So with that, we will open the hearing to Director Mayorkas. 

Welcome. 

TESTIMONY OF THE HONORABLE ALEJANDRO MAYORKAS, 

DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES 

Mr. MAYORKAS. Thank you, Chairman. 

Chairman Gallegly, Ranking Member Lofgren, Members of the 

Subcommittee, thank you for the opportunity to testify before you 

about the efforts of U.S. Citizenship and Immigration Services to 

protect the integrity of our Nation’s immigration system and to 

help safeguard our Nation’s security. 

I appreciate the Committee’s interest in learning about our continued prioritization of the agency’s efforts, which are unprecedented in their scope and effect. 

I want to take this opportunity to thank the men and women of 

USCIS whose dedication to the agency’s mission is unwavering and 

whose hard work makes our vital mission a reality. Together, as 

an agency, we are committed to administering our Nation’s immigration laws efficiently and with fairness, honesty and integrity. 

I also want to thank the U.S. Department of Homeland Security’s 

Office of Inspector General for its role in reviewing our efforts. The 

OIG’s independent review of our agency’s operations assists us in 

our pursuit to improve each and every day including in the priority 

areas of combating fraud and strengthening national security. 

I came to this country as a refugee, escaping the communist 

takeover of Cuba. My father and mother instilled in me a profound 

and abiding appreciation of and respect for the rights and responsibilities that define my United States citizenship and the rule of 

law that is its foundation. 

It was the values my parents instilled in me that led me to become an Assistant United States Attorney specializing in the invesVerDate Aug 31 2005 11:01 May 01, 2012 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021512\72904.000 HJUD1 PsN: DOUGA
8 

tigation and prosecution of criminal fraud. For my nearly 12 years 

as a Federal prosecutor, culminating in my service as a United 

States Attorney for the Central District of California, I learned 

what it means to enforce the law and to do so in furtherance of our 

national security and public safety. 

Historically, our agency has been challenged by a culture that focused primarily upon making adjudication decisions quickly, resulting in a significant and ongoing tension between the quality of our 

adjudications and the speed with which they are made. 

This tension in an agency that processes approximately 7 million 

applications and petitions annually has existed for many years. 

When I came to the agency in August 2009, its first of ten top 

priorities was to achieve production goals. Early in my tenure, I determined there was an opportunity for organizational changes to 

both the culture and structure of the agency in several areas, including our anti-fraud and national security programs. 

I also determined that we must enhance the emphasis on quality 

in our adjudicative approach. This means that immigration benefit 

decisions are informed, adhere to the law and the facts, are made 

in a timely manner, and further the integrity and goals of the immigration system. 

Within 5 months of my arrival at USCIS, I realigned our agency’s organizational structure. I created the Fraud Detection and 

National Security directorate, an elevation and expansion from its 

previous status as an office within a directorate. The resulting 

prioritization of these core responsibilities has enabled us to 

achieve unprecedented results. I also created an Office of Performance and Quality to ensure that our agency prioritizes quality 

throughout its adjudicative practices and mission support processes. 

As the leader of an agency that administers the immigration 

laws of the United States, as a former Federal prosecutor who has 

devoted the greatest part of his career to law enforcement, and as 

a refugee whose blessing of becoming a United States citizen depended on the integrity of our system, it is of paramount importance to me that no USCIS employee—whether because of any perceived pressure to process an immigration benefit quickly or for 

any other reason—ever adjudicates a case other than in accordance 

with what the law and the facts warrant. 

This is an ethic I have articulated and reinforced since I first became the Director of USCIS. 

Mr. Chairman, Ranking Member Lofgren and Members of the 

Subcommittee, thank you again for the opportunity to share with 

you the great work we in U.S. Citizenship and Immigration Services have done and continue to do to safeguard our national security and combat fraud. 

This work allows us to remain the welcoming Nation of immigrants we are so proud to be. 

And finally, I want to again express my deep thanks and appreciation to the men and women of USCIS who dedicate each and 

every day to our noble mission and whose hard work and commitment to our principles have made our achievements possible. 

Thank you. 

[The prepared statement of Mr. Mayorkas follows:] 

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Mr. GALLEGLY. Thank you, Director Mayorkas. 

Our next witness, Mr. Edwards. 

TESTIMONY OF THE HONORABLE CHARLES K. EDWARDS, ACTING INSPECTOR GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. EDWARDS. Good afternoon, Chairman Smith, Chairman 

Gallegly, Ranking Member Lofgren and Members of the Committee. 

I am Charles Edwards, Acting Inspector General for the Department of Homeland Security. Thank you for inviting me here today 

to discuss our report, ‘‘The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers.’’ 

This inspection effort was designed to respond to questions from 

Senator Grassley after he received whistleblower complaints from 

USCIS service center employees. Our conclusions are based on 

interviews and survey responses as well as review of hundreds of 

email messages, reports, appeal decisions and media stories. 

We received input from more than 400 USCIS employees, including Director Mayorkas, and we thank them for their perspective 

and their collaboration. 

Our inspection reviewed ways to improve fraud detection in the 

immigration benefit caseload. 

In our report, we determined that important steps have been 

taken to promote the integrity of the immigration benefit system. 

Nonetheless, additional work is necessary to maximize efficiency 

and mission performance. 

It is important to note that several of the problems we identified 

have been documented for over a decade. Production pressure in 

the immigration benefit caseload has existed for a long time. Data 

shows that some benefit denial rates have increased in recent 

years. 

Nonetheless, even a benefit that has a relatively high denial rate 

may still be subject to production pressure. 

Our report included 11 recommendations for USCIS and a discussion about the standard of proof in immigration benefit determinations. My statement for the record includes further details 

about all sections of our report. 

Our first three recommendations relate to the interaction between Immigration Service Officers, or ISOs, who process benefit 

requests, and fraud detection Immigration Officers, or IOs. Our report recommended that USCIS promote more collaboration between 

ISOs and IOs. USCIS concurred with these recommendations. 

Our fourth recommendation pertains to the identification of 

aliases. Individual aliases or multiple spellings of names complicate 

the security check process. Because files can be large, ISOs can 

miss aliases during the review of a case file. 

We recommended additional quality assurance review to decrease 

the risks involved in unidentified aliases and USCIS concurred. 

Recommendations five and six discuss further ways to improve 

ISO performance evaluations. 

The recently revised ISO performance measures prioritize quality 

and national security as critical elements. We recommended that 

19 

USCIS perform on-site outreach efforts to support the new performance criteria and to solicit comments from field staff about the 

new measures. USCIS concurred. 

In the remaining parts of the report we discussed some other 

pressures ISOs have perceived to approve cases despite doubts they 

have about a person’s eligibility. We recommended that ISOs be 

given additional time for case processing, and although USCIS did 

not concur the issue will be studied further. 

Several USCIS employees informed us that ISOs have been required to approve specific cases against their judgment. Any such 

instruction by a supervisor would be contrary to USCIS policy. 

When it occurs that a higher ranking and probably more experienced supervisor believes the case approvable, the supervisor is 

supposed to sign the decision. An ISO should never sign something 

when he or she disagrees with the decision, even at the request of 

a higher-ranking officer. 

Some ISOs may not be aware of this policy and USCIS concurred 

with our recommendation that it be enforced. We also recommended that USCIS make improvements to policy on Requests 

for Evidence, or RFEs, which are sent if an ISO needs additional 

information to make a decision. 

The USCIS adjudications manual is unclear, stating both that 

RFEs should if possible be avoided and that ISOs should request 

evidence needed for thorough correct decision making. USCIS concurred with our recommendation to clarify RFE policy. 

USCIS did not concur with the final two recommendations in our 

report, which suggested new policies to define more clearly the procedure to be followed if USCIS managers and attorneys seek to affect the adjudications process. 

Mr. Chairman, this concludes my prepared remarks and I will be 

happy to answer any questions that you or the Members may have. 

Thank you. 

[The prepared statement of Mr. Edwards follows:] 

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Mr. GALLEGLY. Thank you very much, Mr. Edwards. 

Director Mayorkas, it is my understanding that a few years ago 

the Office of Fraud Detection and National Security issued a draft 

report detailing the amount of fraud in the L visa program. In fact, 

my staff has been provided with parts of that draft report which 

seemed to show many specific cases of L visa fraud. 


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My staff has also been told that you and other officials at USCIS 

put pressure on employees to downplay that fraud and there was 

belief that if this report were released on the heels of the H-1B 

fraud assessment, which showed a 21 percent fraud rate in that 

program, it would be a blow to the push for comprehensive immigration reform. 

Even the former head of FDNS indicated that fraud was in double digits, high enough that there should be concern that the agency and department should want to correct it. 

Director Mayorkas, can you tell us when you plan to release the 

final report? 

Mr. MAYORKAS. Thank you very much, Chairman, for giving me 

an opportunity to address your concerns. 

Any suggestion that I downplayed fraud or have ever downplayed 

fraud is categorically false and is belied by my record since the first 

day that I started as the Director of U.S. Citizenship and Immigration Services. 

As I alluded to briefly, when I came into the office I conducted 

a top-to-bottom review of the agency and within 5 months created 

the Fraud Detection and National Security directorate, elevated its 

priority within the agency and have embarked upon and executed 

a series of initiatives that have demonstrated my prioritization of 

that critical mission set. 

I think that the record speaks for itself. To provide some measure of the effectiveness of our anti-fraud efforts, in fiscal year 2011 

adjudicators referred over 16,000 suspected fraud cases to the 

Fraud Detection and National Security directorate and in turn 

FDNS, as it is known, completed administrative fraud investigations on 8,739 cases, finding fraud in over 6,000 of those cases, approximately 70 percent. That is a 34 percent increase over the 

number of investigations completed in fiscal year 2010. 

Mr. GALLEGLY. Pardon me, Director Mayorkas. I understand how 

proud you are of your record and I totally respect that. 

But with all due respect to the time, that doesn’t address the 

question I asked and the question I asked simply is when do you 

plan to release the final report? 

Mr. MAYORKAS. One of the initiatives that we embarked upon, 

Chairman Gallegly, is to improve the benefit fraud and compliance 

assessment report process and so what we have done is we have 

brought expertise to bear to ensure that those reports are prepared 

in a statistically sound fashion and are well grounded in fact and 

study so that we can most effectively direct our operations accordingly. 

What I have instructed our workforce in the interim is to use the 

report that it does have, to use the evidence that they do have currently in their possession, and make the operational decisions that 

they need to. 

So we are addressing the fraud currently based on the data that 

we have and we are improving the report process, including its 

preparation. 

Mr. GALLEGLY. So you do have a draft report that you are using 

as a basis to proceed ahead. What I would ask then, Director, is 

can you please provide me by the end of the work day today a copy 

of that draft benefit fraud and compliance assessment? 

30 

**The information requested was received by the Subcommittee but is not being included in 

the printed hearing record. 

Mr. MAYORKAS. Thank you, Mr. Chairman. 

Mr. GALLEGLY. Can you do that? 

Mr. MAYORKAS. I certainly can, and whether it is at the end of 

the day or forthwith we certainly will. 

Mr. GALLEGLY. As long as we have forthwith I would say by noon 

tomorrow, okay? 

Mr. MAYORKAS. Very well, Chairman.** 

Mr. GALLEGLY. Thank you very much. 

Inspector General Edwards, there has been criticism of the section of your report stating that nearly 25 percent of the immigration service officers who responded to your online survey said they 

felt pressure to approve questionable applications. 

Specifically, the criticism suggests that since these ISOs were at 

USCIS field offices, which do not adjudicate employment-based petitions, so this pressure is not apparent in the service centers 

where the employment-based visas are adjudicated. 

I know in addition to the online survey your investigators also 

conducted 147 interviews, many of which were adjudicators at the 

service centers. Did your investigators hear the same kinds of concerns about the pressure to approve questionable applications during interviews they conducted with service center personnel? 

Mr. EDWARDS. Thank you, Chairman. 

Yes, we heard the same concerns during our interviews of the 

service center personnel. 

Mr. GALLEGLY. So it is consistent. 

Mr. EDWARDS. Yes, sir. 

Mr. GALLEGLY. Very good. Thank you. I see my time has expired. 

The gentlelady, the Ranking Member, Ms. Lofgren. 

Ms. LOFGREN. Before I ask my questions, I would like to ask 

unanimous consent to include in the record a letter from the American Immigration Lawyers Association and also a letter from the 

U.S. Chamber of Commerce. 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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Ms. LOFGREN. I would just note in the letter from the Chamber 

of Commerce is this statement: All regulatory economists that reviewed the report—this is for the U.S. Chamber of Commerce—has 

concluded that the survey methodology should draw into question 

any reliance on the conclusions in the report, and that is a concern 

that I have. 

Now, having said that, and this is with all due respect, Mr. Edwards, and it is not personal to you but I was astounded at the 

amateurishness of this report, and I expect better and I am hoping 

that maybe we can sit down and talk about the need for statistical 

analysis for future reports. And I may have some direct questions 

for you that I will go into off calendar. 

But, certainly, we don’t want fraud, I mean, and I remember 

being in this chamber a number of years ago in the 90’s and pointing out concern about H-1B approvals, and one Sunday morning I 

took the addresses listed in the top 20 and they were all in Silicon 

Valley and I drove around. 

They were post office boxes and I remember saying, you know, 

if a middle-aged Congresswoman can find out that the employer is 

a post office box there was a problem. This was way before you 

were here, Mr. Mayorkas. It was in the 90’s. And so, certainly, 

there is room to improve and you have made tremendous improvements. 

I would just note that in terms of just the statistics, if you take 

a look at the H-1B denial rates and who knows whether this is the 

post office boxes I saw back then but, for example, in the year 2004 

the denial rate was 11 percent on H-1Bs. In the year 2011, it is 

17. When you take a look at the request for evidence rates in 2004 

it was 4 percent. In 2011, it was 26 percent. I mean, that is a big 

jump. 

In the L-1B request for evidence rates, it was 2 percent in 2004, 

63 percent in 2011. So you are really ramping up the evidentiary 

standards in the inquiry and, certainly, we don’t want fraud but 

there is a price to pay as well if it is a legitimate effort and it is 

delayed unduly. And I want to just raise a couple of questions. For 

example—and this is an actual case, I won’t mention the country 

or the name of the individual out of respect for the process—but 

it is a former head of state of a Western European nation whose 

name is a household name, who was applying to come give a 

speech and was asked to list his employment dates and his employer. It is like, give me a break. 

I mean, how could that be a reasonable use of our time and effort? And I am wondering—well, for example, a case where the 

U.S. Chamber has cited where a company wanted to open a fulfillment center in the United States and there were visa petitions to 

bring in a handful of foreign staff to train American staff for the 

new center, and they couldn’t get the visas approved and so the 

company went to Canada instead. 

Or an issue raised by the immigration lawyers of an 

intracompany manager for a cartridge refill kiosk company that 

was moving from Spain to the United States. The business took off. 

They submitted an I-140 for the CEO. It was denied even though 

people who reported to him had been approved and so now the 

company is looking to move outside of the U.S. 

43 

I say this not to be critical of you, Mr. Mayorkas, because you 

are a breath of fresh air for this agency. You have computerized it. 

You have modernized it. You have rooted out fraud. But what can 

we do systematically to make sure that our anti-fraud efforts don’t 

tie up legitimate businesses? 

I worry that if you delay—the easy thing to do is to say no and 

saying no has a price to our economy because when you just say 

no, companies move offshore and Americans lose jobs. I know you 

care about that. What are your thoughts on that? 

Mr. MAYORKAS. Thank you very much, Ranking Member Lofgren. 

Let me, first, say that one will always be able to present to any 

large organization an example of a mistake that has been made. 

Ms. LOFGREN. Sure. 

Mr. MAYORKAS. But I am immensely and deeply proud of the 

quality of the work that is performed at U.S. Citizenship and Immigration Services. 

It is all about quality. It is all about the quality of work that we 

deliver, and I agree with Chairman Gallegly’s statement that there 

is never a legitimate reason to deny a petition where the beneficiary is eligible for the benefit and there is never a reason to approve a petition that does not meet the statutory requirements. 

Ms. LOFGREN. I agree with that as well. 

Mr. MAYORKAS. And we have focused extensively on improving 

the quality of our work and providing the tools to adjudicators to 

perform at the highest level. They have that desire, they have that 

drive and they have that commitment to our agency. 

In the realignment, to which I referred in response to the Chairman’s first question, I created the Office of Performance and Quality to really shift the focus of our agency from an agency that historically has put a great deal of prioritization on speed to the quality of our work, and the approval or denial rates are not defining. 

What is important is: are we approving the cases that should be 

approved, are we denying the cases that should be denied, and are 

we providing the adjudicators with the tools to do that. 

Ms. LOFGREN. If I may, Mr. Chairman, it seems to me that sometimes there are informal methods to help improve processes, and 

it is not you. It is the State Department. But I think back to years 

ago of a case in my office, my constituent, an American citizen, who 

needed a kidney transplant and her brother, her younger brother, 

wanted to donate that kidney. I got a call from the physician, her 

physician, the surgeon at Stanford, and said she is going to die if 

we can’t get this done in a time frame. 

Her brother went in to get a visa and was denied and so we sent 

an inquiry please—you know, we have talked to the doctor. The 

physician called and they denied it again, and I just wrote to the 

State Department, this is your decision but if you kill my constituent, I mean, I think 60 Minutes is going to cover it. 

And so somebody sometimes needs to look at these things from 

outside and say, yeah, this is fraud, we don’t want to approve it, 

or we are all human. Mistakes can be made and to correct them 

quickly instead of after 2 years is an appropriate thing to do. 

My time has expired, Mr. Chairman. I yield back. 

Mr. GALLEGLY. I thank the gentlelady for being sensitive to the 

clock. 

44 

I would now yield to Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

I thank both of our witnesses. First, Mr. Edwards, this phrase 

‘‘get to yes,’’ is that a phrase that originated with you and if so 

what evidence did you find to support the notion that there has 

been a shift in the paradigm and now the objective is to get to yes 

as opposed to get to correct or get to complete, which would make 

more sense to me? 

Mr. EDWARDS. Thank you, sir. 

We don’t know who originated that phrase. It is something we 

came across many times during our field work during this inspection. But determining who originally said it was not our focus of 

our review. So I am not sure who started that. 

Mr. GOWDY. Well, let me—— 

Mr. EDWARDS. I know Director Mayorkas talks about it in his 

testimony about getting to the truth but this getting to yes, we 

don’t know who originated that. 

Mr. GOWDY. Getting to the truth would be very hard to disagree 

with. Getting to yes is a little more subjective, particularly in light 

of fraud referrals. Let me ask you one other thing before I speak 

to the director. 

The other phraseology that I found problematic was the notion 

that outside counsel is running the office, that private immigration 

attorneys are running the office. 

What substantiates that allegation? Was it pervasive? Was it episodic? How did that wind up in your report? 

Mr. EDWARDS. Well, there were several cases of this type of improper pressure brought to our attention. I don’t know the exact 

number in front of me but I would be happy to provide that to you 

in writing or I can come by and brief you. 

Mr. GOWDY. Well, I would like that and let me start by saying 

I listened very intently as you went through your background, particularly as a prosecutor. I have great regard for that. I commend 

you for the years you have served. You mentioned as a Federal 

prosecutor. 

I don’t know whether you were a state or not but, regardless, 

thank you for your service. You will agree, I am sure, that if there 

were an indication that the criminal defense bar were running the 

DA’s office we would find that very objectionable and while the reality matters, and I am not overlooking the reality, the perception 

matters as well. And if there is a perception within the office that 

outside counsel has more influence than the reviewers within the 

office, that is a problem. 

So did it exist before you got there? What are you doing about 

it or is it an unfair accusation? 

Mr. MAYORKAS. Thank you very much, Congressman, for your inquiry because I think you hit on a very important point, that if 

there is a perception within the agency that is quite divorced from 

actually what is really happening, we, as leadership in the agency, 

have to address that even if that misperception is amongst an incredibly small number of people. 

I have spoken repeatedly throughout the agency about the fact 

that there should not be a culture of ‘‘get to yes’’ nor should there 

be a culture of ‘‘get to no,’’ of which we are also accused, but rather 

45 

the culture that should prevail from every quarter and across the 

entire agency is a culture of ‘‘getting to right,’’ which I think you 

alluded to. 

The notion that outside counsel or anyone outside our agency 

runs our agency is categorically false, of course, and I think what 

the inspector general’s report reveals to us is that we have to communicate a bit better throughout the agency and amplify the messages that we already have communicated, I, in particular, everywhere I go throughout the agency, not only domestically but internationally. 

Mr. GOWDY. My time is almost up. I want you to hearken back 

to the old days as an AUSA. If you had made a decision and the 

criminal chief or the civil chief had overruled you because they had 

gotten a phone called from defense counsel you would be appropriately outraged. 

Did you find any instances where that did happen, where the decision maker was overruled either because an email or a telephone 

call was placed to a supervisor? 

Mr. MAYORKAS. I myself have not either as a Federal prosecutor 

in the United States Attorneys Office for 12 years or as the Director of this agency. 

Mr. GOWDY. Mr. Edwards, did you find any evidence that outside 

counsel was able to overturn decisions that were made by line reviewers? 

Mr. EDWARDS. Well, a poorly documented and regulated process 

to allow some cases to be reexamined in a favorable light is undesirable. It lacks transparency and lacks internal controls and it creates unfairness. Who you know should not affect the outcome of the 

process, of the petition, but I am not aware of any myself. 

Mr. GOWDY. The clock is off but I don’t think that means you are 

giving me unlimited time so—— 

Mr. GALLEGLY. Time of the gentleman has expired and at this 

time the Chair would yield to the gentlelady from California, my 

good friend, Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I am very appreciative for you holding this hearing. I would like 

to welcome our witnesses today and say hello to my old friend, Mr. 

Mayorkas, who served as U.S. Attorney in the L.A. area and I got 

to know him. I am very pleased that he is here with us today in 

this very important role. 

I simply want to get a better explanation of the EB-5 foreign investor visas and try and understand the requirement for investment in high unemployment areas with investments of, I think, 

$500,000 or so. 

We have been trying to figure out—for example, in the L.A. area 

we have located all of our regional offices. We are trying to determine how they define the high unemployment areas getting the 

benefit of these investments. Could you help me to understand this 

a little bit better, Mr. Mayorkas? 

Mr. MAYORKAS. Thank you, Congresswoman. 

The EB-5 program is an immigrant investor visa program that 

provides (in tremendous summary fashion) that a foreign investor 

who invests the required amount of capital in a new commercial 

enterprise that creates at least ten new jobs may obtain conditional 

46 

lawful permanent resident status, and the amount of investment 

that must be made is $1 million unless the new commercial enterprise is located in what the legislation describes as a targeted employment area, an area of high unemployment, specifically one that 

endures 150 percent of the national average. 

And the targeted employment area is defined geographically by 

a state according to the regulations that implement the statute and 

then our agency verifies that the geographic boundaries defined by 

the state as a targeted employment area actually do suffer 150 percent of the national average of unemployment. That is a very quick 

sketch of the program. 

Ms. WATERS. Does it work? 

Mr. MAYORKAS. The program does work. We can provide data if 

you should so request with respect to the amount of capital that 

has been invested in the United States and the number of jobs that 

have been created as a result of the program. 

Ms. WATERS. So when you have potential investors do you suggest places for them to invest? And most of these are like construction projects, I understand. 

But are they looking for places to invest? Do you suggest to them 

where they can go where it would be helpful for dealing with unemployment? How much do you get involved in this? 

Mr. MAYORKAS. Congresswoman, we do not encourage investment in a particular project. We do not make recommendations 

with respect to the advisability of an investment. 

Rather, it is our responsibility to determine whether the petitions 

that have been submitted to us do or do not meet the statutory eligibility requirements and, on the facts that are presented to us in 

adherence to the law that Congress has passed, whether the petition should be approved or denied. 

Ms. WATERS. Are you—— 

Mr. MAYORKAS. That is—if I may, Congresswoman, that is the 

standard that guides all our work, not just with respect to the EB5 program. 

Ms. WATERS. Are you familiar with this article by Patrick 

McGheehan and Kirk Semple dated December 18, 2011, that says 

‘‘Rules Stretched as Green Cards go to Investors?’’ Are you familiar 

with this article? 

Mr. MAYORKAS. I am. 

Ms. WATERS. And do you agree or disagree with it? 

Mr. MAYORKAS. It is not really a question of whether I agree or 

disagree with it, Congresswoman, respectfully. 

What the report, I think, sought to identify was what the reporters perceive as a potential for abuse in the regulations that define 

a targeted employment area and, specifically, the ability of states 

to designate that. 

Ms. WATERS. This article talks about the giant Atlantic Yards 

project in Brooklyn which abuts well-heeled brownstone neighborhoods that has qualified for special concessions using a gerrymandered high unemployment district. The crescent-shaped zone 

swings more than two miles to the northeast to include poor sections of Crown Heights and Bedford-Stuy. 

47 

A local blogger and critic of Atlantic Yards, Norman Oder, has 

referred to the map as ‘‘Bed-Stuy Boomerang.’’ Are you familiar 

with that? 

Mr. MAYORKAS. I am familiar with the article. I did not study the 

underlying case about which they reported. 

Ms. WATERS. Mr. Mayorkas, have you studied any of the cases 

that have been identified either in this article or other articles that 

maintain that the rules are being stretched? 

Mr. MAYORKAS. I am familiar with the concerns underlying the 

reporters’ identification of particular cases. 

Mr. GALLEGLY. The time of the gentlelady has expired. Before I 

go to Mr. Gohmert, I just briefly want to make a clarification. 

When I introduced our director as the former U.S. Attorney for 

the Central District of California, I didn’t note that the Central 

District of California, which is my home, is also the largest district 

in the Nation by population. So that may answer your question, 

Mr. Gowdy. 

With that, I would yield to Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman, and I appreciate the 

witnesses being here today. 

It is rather fortuitous as far as the timing of this hearing and 

my friend from California brought out the EB-5 visa issue because 

I have been finding out more about that just in recent days because 

here is the scenario. 

A man named Hector Hernandez Javier Villarreal, former secretary executive of Tax Administration Service of Coahuila, Mexico, 

apparently was arrested with his wife, charged with stealing 

money, embezzling money from Mexican banks. 

Local law enforcement in east Texas tell me that they were told 

it could be hundreds of millions, even billions of dollars that were 

embezzled. 

Anyway, they were arrested and folks back home were told they 

put up a million dollars in cash to be bonded out of jail in Mexico 

and then applied for an EB-5 visa, which was granted. 

I am not sure if there was a policy of ‘‘get to yes’’ but certainly 

yes was gotten to rather quickly with these folks because they 

needed out of Mexico if they were going to be true fugitives and 

jumped their bond. So they came to east Texas on a EB-5 visa. 

Local law enforcement and Homeland Security personnel in 

Texas were told that actually within two or 3 days of the visa being 

granted it was revoked. Well, local law enforcement in Tyler, 

Texas, stopped a car for a traffic violation. They have a good sense 

on some things just not seeming right when they found a car with 

$67,000 in cash, two kids, shotgun and a driver. 

They started running these folks and stirred up a lot of interest 

of ICE as well as Homeland Security. ICE immediately stepped in, 

wanted to know why they were running the shotgun, which also 

raises issues. I wonder if this was involved in ‘‘Fast and Furious.’’ 

We have no idea. 

But the Federal authorities stepped in. ICE took these folks and 

the materials that were obtained by local law enforcement to the 

Dallas detention facility and then Homeland Security reported to 

the sheriff’s office in Tyler, also concerned about the running of the 

48 

name and the gun, and they were told, well, you have to follow ICE 

because they have taken these folks to Dallas. 

Once in Dallas, the law enforcement tells me that the State Department told them they had held them for 48 hours, they got to 

let them go—that even though the visa was revoked they got into 

the country before the visa was revoked. 

Therefore, they are lawfully in the United States and therefore 

you have got to let them go anywhere they want to go in the 

United States. So ICE reluctantly, as I was told, released them and 

within a day or two the State Department said, you know what, 

our neighbor to the south has warrants out on these folks. 

We really need to get them back. But since they had such large 

amounts of cash they have apparently not had trouble going to 

other places as yet undetermined. 

So it raises all kinds of questions. Are people able to just buy 

their way into this country by saying look, you know, we know you 

have got tough economic times in the U.S. so whether it is a million dollars or, as I understood it, these folks were willing to put 

up $500,000. It must have been, perhaps, in a high-unemployment 

area. 

But it sounds like an EB-5 visa is just that, a way for people to 

buy their way into this country. And why in the world would a 

State Department direct the release of people for whom there were 

warrants out in our neighbor country? Supposedly, the State Department wants them to be a law and order country in Mexico. 

So I am open to any suggestions as to how we correct this kind 

of fiasco from happening, and it makes you wonder do we have terrorists that have utilized this same system to buy their way in. But 

any suggestions either one of you way may have. 

Perhaps we need an IG inspection on this or an investigation on 

just what all has gone wrong here. But any comments? 

Mr. MAYORKAS. Congressman, thank you. 

I am not familiar with the case. 

Mr. GOHMERT. Well, I didn’t figure you would be but if things 

were as have been revealed to me as I have conveyed to you I 

would like your suggestions on how we fix things the way they are 

now. 

Mr. MAYORKAS. Let me, if I can, given my unfamiliarity with the 

case that you describe, make some critical foundational points. 

Number one, we as an agency conduct extensive background 

checks of individuals who seek to enter the United States—— 

Mr. GOHMERT. Or you are supposed to. 

Mr. MAYORKAS. We do. Who—— 

Mr. GOHMERT. Well, it would have turned up a warrant if that 

had been done here. 

Mr. MAYORKAS. As I said, Congressman, I can’t speak to the fact 

of that—— 

Mr. GOHMERT. Right. 

Mr. MAYORKAS. Of the case but—— 

Mr. GOHMERT. So all you can say is you are supposed to do a 

thorough background check. 

Mr. MAYORKAS. Yes, indeed. 

Mr. GOHMERT. Right. 

49 

Mr. MAYORKAS. Yes, indeed. And we adhere to our responsibilities scrupulously in a way that makes me quite proud. We have 

actually expanded the breadth and frequency of the background 

checks that we conduct during my tenure. 

You asked a question about the EB-5 program and whether it is 

really a vehicle for individuals to purchase entry into the United 

States. 

The EB-5 program—and I would respectfully submit that it is 

not—the EB-5 program does not provide, as legislated by Congress, 

that if you pay $500,000 in a targeted employment area or $1 million outside of one you shall gain entry into the United States, 

rather that you must invest your capital into a new commercial enterprise that creates jobs for United States workers. 

It is an immigrant investor visa program that is designed to create jobs for U.S. workers and so it is not a vehicle for individuals 

to buy a visa. And so I would welcome the opportunity to speak 

with you separately. 

I will learn about the case to which you refer and I will be in 

a position to address the facts of the case specifically. 

Mr. GALLEGLY. The time of the gentleman has expired. 

Mr. GOHMERT. Mr. Chairman, could I just ask unanimous consent to ask the IG if this is something he would be able and willing 

to investigate? 

Mr. GALLEGLY. Without objection. 

Our day is getting short. We have another panel. We have to be 

out of here by 4:30. 

Mr. EDWARDS. Congressman, if the Chairman makes the request, 

I will definitely look into it. 

Mr. GOHMERT. Okay. Thank you. Chairman, I know where I need 

to go after the hearing. 

Mr. GALLEGLY. The time of the gentleman has expired. 

Ms. Jackson Lee? 

Ms. JACKSON LEE. Again, let me thank the witnesses for their 

presentation and as well to acknowledge the Chairman and the 

Ranking Member for this hearing. 

First of all, Mr. Edwards, did you find fraud, conspicuous and 

open fraud, in this process that the former U.S. Attorney is over 

the benefits aspect of immigration? Did you find conspicuous fraud? 

Mr. EDWARDS. No, ma’am. 

Ms. JACKSON LEE. All right. A wonderful Greek name, I believe, 

Mr.—I want to pronounce it right—it is Mr.—— 

Mr. MAYORKAS. It is Mr. Mayorkas and I come from a long line 

of bad spellers. It is a Spanish name. 

Ms. JACKSON LEE. Spanish. All right. [Laughter.] 

Then I stand even more corrected. 

Mr. Mayorkas, let me make sure that that is correct. And the 

agency that you are over out of the department is a civil agency, 

right? It doesn’t deal with criminal issues. 

Mr. MAYORKAS. That is correct. It is an administrative agency. 

Ms. JACKSON LEE. Okay. And so the idea of this issue of private 

lawyers running your shop, what does that mean to you? And I am 

going to be doing rapid questions. I mean, what do I understand 

when someone says private lawyers are running the shop? 

50 

Mr. MAYORKAS. What it means is that because we are a transparent agency and an agency that engages with all stakeholders 

that apparently that transparency has created a misimpression 

that somehow somebody other than the leadership of the agency 

runs the agency, and it is a misperception that we will address 

through robust communication. 

Ms. JACKSON LEE. Well, let me thank you for that because, first 

of all, being administrative and not criminal or not being a judicial 

agency per se the issue of ex parte contact is not an issue. Lawyers 

have a right to have a conversation. They are civilians. 

Your workers or employees are civilians as well and I assume 

they take information from whoever they might be able to get it 

from, including advocates for immigrants. Is that not correct? 

There are some individuals who will have an advocate from a nonprofit agency. 

I assume they have the opportunity to bring information forward 

on behalf of an immigrant or someone seeking status. Is that correct? You take information from all? 

Mr. MAYORKAS. We take information from all and we have established channels to receive that information. I think, if I may, Congresswoman, what the Chairman was concerned of and what the 

inspector general focused on and what we are focusing on always 

is the fact that there should be no communication that provides an 

avenue for undue influence on the adjudication, that an adjudication must be independent based on the facts and the law and nothing else. 

Ms. JACKSON LEE. And I agree with that. But as my, and I do 

not want to put words in her mouth, but as my colleague from California, the Ranking Member, indicated, where there is life or death 

matters we have all made mistakes and your agency has made mistakes in its denial. And so sometimes people are extremely zealous 

to save a life to get someone with a transplant, to get families reunited who were trying to get back from a funeral and they are in 

India and they have been begging for—while the person was ailing. 

Then the person dies and they are denied. 

So I don’t want this hearing to be a statement that you should 

close your eyes and ears to mercy requests, to information. I have 

no problem with transparency and I want the system to be held to 

the highest standard. So let me just lay that on the record and let 

me go forward on these questions. 

I happen to think there is some value to the employment-based 

visas. It is my understanding that 10,000 visas a year are set aside 

for the EB-5 program. However, less than half of these are actually 

issued. What do you see as the major obstacles for that? 

Mr. MAYORKAS. If I may, Congresswoman, I—— 

Ms. JACKSON LEE. And let me just give these questions so it 

could be on the record. It is my understanding that each immigrant 

who is accepted on an EB-5 their investment is required to create 

U.S. jobs. 

I would like to know how you monitor that and I think that is 

a response to Ms. Waters’ question as to how do you tie in BedStuy and don’t do anything for them. Then under EB-5 what kind 

of accountability is there for contributing to deficit reduction and 

51 

job creation. We can use these effectively and I think they should 

be used. But go ahead, Mr. Mayorkas. 

Mr. MAYORKAS. Thank you, Congresswoman. 

The EB-5 program has enjoyed growth in its usage over the last 

3 years. We are improving the quality of our adjudications and we 

are focused on improving the integrity of the program as well. 

So while the visa program has been underutilized in terms of the 

maximum number of visas that are allowed, we have seen material 

growth in its usage. 

Ms. JACKSON LEE. Is it—— 

Mr. GALLEGLY. The time of the gentlelady has expired, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

I thank the witnesses for your testimony and your response to 

the questions from the panel. I turn first to Mr. Edwards and ask 

him, first, I want to give you an opening to respond to anything 

that might have been said that you didn’t have the chance to say, 

but then if you could go into a little more depth on your sense of 

the analysis of the ‘‘get to yes’’ culture that you have observed exists within the department. 

Mr. EDWARDS. Well, the 400 folks that we interviewed and surveyed there is extreme pressure for them to get to yes. There are 

cases that are clearly approvable and there are cases that is clearly 

deniable. It is the cases in that gray area that raises the concern. 

Adjudicators, ISOs, have told my folks that it is easier to say yes 

and approve it and if they don’t approve it, it comes back to them. 

So that is what we found. 

Mr. KING. It is easier to say yes because there is a load of paperwork to fill out if you say no? 

Mr. EDWARDS. Because there is a pressure to get things approved. 

Mr. KING. Uh-huh. But you say it is the culture. Is there a process also? Can I count the extra pieces of paper I have to fill out 

if I say no as compared to those if I say yes, as an officer? 

Mr. EDWARDS. Yes. Yes. 

Mr. KING. Did you quantify that in your report or is that possible 

to quantify that? 

Mr. EDWARDS. I will have to get back to you for that. 

Mr. KING. I would pose that question to you formally in the hearing and ask you to get back on that. 

Mr. EDWARDS. Sure. 

Mr. KING. If you can quantify how much more paperwork is required to say no than it is to say yes. 

Mr. EDWARDS. Sure. 

[The information referred to follows:] 

52 

Mr. KING. If it is 91 percent more of that index exactly with the 

forms of the highest level of approvals that we have seen. 

I thank you, Mr. Edwards, and then I turn to Mr. Mayorkas and 

I also appreciate your service and your testimony. 

Just curious about, as I was listening in on some of the exchanges here, if your department says no to an application and 

that might prevent someone from otherwise exercising a privilege, 

not a right but a privilege, and that could be extrapolated into the 

end of life for someone—could be anything, it could be a plane that 

crashed, a car wreck, it could be an illness—would you take that 

as an action by your department that would have killed someone? 

Mr. MAYORKAS. I look at the question as follows. What is the responsibility before us based on the facts that are presented and as 

we apply the laws that Congress has passed, and if in fact an individual applies for a benefit to which he or she is not eligible, under 

the laws that have been passed, the regulations that implement 

them and the facts as presented, then we are to adjudicate the case 


72904B.eps
53 

accordingly. The consequences of an adjudication do not guide the 

adjudication but, rather, the facts and law do. 

Mr. KING. Then how does that impact you when you hear from 

this panel, if you kill my constituent? 

Mr. MAYORKAS. I don’t think that is what Ranking Member 

Lofgren was asking me, quite frankly. 

Mr. KING. Can you identify that? I would like to hear that. 

Ms. LOFGREN. Would the gentleman yield? Because I—— 

Mr. KING. I would yield. I would like to hear this and I think you 

should have an opportunity to speak to it. 

Ms. LOFGREN. I think you misunderstood my point. 

Mr. GALLEGLY. It is the gentleman’s time. 

Mr. KING. So I would yield to the gentlelady from California. 

Ms. LOFGREN. The point I was making, and I think you probably 

didn’t hear what I said, this was the State Department, not USCIS, 

and it was a constituent of mine who was dying and needed a kidney transplant, and her brother was willing to donate his kidney. 

Mr. KING. I understood this so far. 

Ms. LOFGREN. They denied his application to come in and donate 

the kidney. 

Mr. KING. Yes. 

Ms. LOFGREN. And we had the doctor calling us, we had the hospital, and they just wouldn’t listen. And it was their decision but 

I finally said, you know, you kill the constituent there is going to 

be a dust-up. And when they actually did look at what the doctor 

said they issued a visa. The brother came—— 

Mr. KING. Okay. 

Ms. LOFGREN. And he donated the kidney and then he went 

home. 

Mr. KING. I am reclaiming my time and I appreciate the 

gentlelady reiterating. That was the way I heard it and it just troubled me the extrapolation component of that, and I am hopeful that 

another statement the gentlelady made from California, the easy 

thing to do is say no, doesn’t get easier to say no even if it is the 

State Department and not USCIS. 

And so I appreciate the testimony that you have had, Mr. 

Mayorkas, that it needs to be an objective evaluation of each individual case separate from statistical data on the other cases. 

It needs to be on the law and it needs to neither advantage nor 

disadvantage individuals. It needs to respect and reflect the rule of 

law and I think sometimes here we are pushing the line back and 

forth. 

But that is the result that we need yet the data supports something otherwise and the culture that must exist that has been spoken to by the gentleman, Mr. Edwards, and I am looking at the 

chart here of the approvals and the disapproval rate from 2009 

until 2011 that show that the disapproval rating has gone down, 

the approval rating has gone up and I haven’t heard yet to what 

you attributed that, and I would ask if you would let us know what 

that is. 

What does that data show us then? 

Mr. MAYORKAS. Congressman, there are categories in which the 

denial rate has increased and there are categories in which the denial rate has decreased and there are times over the stretch of hisVerDate Aug 31 2005 11:01 May 01, 2012 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021512\72904.000 HJUD1 PsN: DOUGA
54 

tory when one would see an ebb and flow in denial and approval 

rates. 

The critical question is, what is the quality of the adjudications 

that U.S. Citizenship and Immigration Services is issuing. Are we 

approving cases that should be approved and denying cases that 

should be denied or are we doing otherwise? That is the critical 

question. It is a matter of quality. 

Mr. KING. But what do I learn from the data? Can I draw any 

conclusions from the direction the data has been going over the last 

couple of years? 

Mr. MAYORKAS. Well, let us pose a data point that Chairman 

Gallegly presented in his opening remarks. The denial rate in the 

L-1B visa category has increased dramatically over the last 5 

years. 

We can draw from that fact quite a number of conclusions, any 

of which might be right, any of which might be wrong. The question that I have and the question that I ask internally is not data 

driven but is addressing the substance of the work that we perform. 

Mr. KING. Then can I conclude that—— 

Mr. MAYORKAS. Are we getting it—if I may—are we getting it 

right? Are we requesting evidence when in fact further evidence is 

needed to make a meritorious adjudication and are our requests for 

evidence well framed to further the agency’s goals and to be clear 

to the applicant or petitioner? 

Are we deciding a case correctly, not worried—— 

Mr. KING. I hear your message, Director, and just in conclusion 

here then can I conclude and would you support an inclination that 

the quality of the H-1B applications are greater than they have 

been because that is the trend that we are seeing with the approval 

rates? 

Mr. MAYORKAS. I am not prepared to make that conclusion based 

on—— 

Mr. KING. Thank you. I yield back. 

Mr. GALLEGLY. The time of the gentleman has expired. 

For clarification purposes, I would just like to follow up on the 

question that was asked of Mr. Edwards regarding the process. 

Perhaps, Mr. Mayorkas, could you give us a simple yes or no answer, in the process of adjudicating a yes or a no, if there is a ‘‘yes’’ 

or an approval it merely requires an approve or a stamp ‘‘yes’’ 

whereas if there is a denial there has to be a detailed explanation 

for why there is a denial, not just denied versus a rubberstamp 

‘‘yes?’’ 

Is that fundamentally correct, Mr. Mayorkas? 

Mr. MAYORKAS. I think it is fair to say, Chairman, and I know 

you asked for a monosyllabic response but I think it is fair to say 

that there are instances in which to deny a case requires more paperwork. 

Mr. GALLEGLY. But the fact remains is it doesn’t really require 

more—from a requirement standpoint than a stamped ‘‘yes’’ or an 

explanation for why it has been denied. 

Mr. MAYORKAS. There are occasions when that is so and let me, 

if I can, say that I am addressing that issue as part of our Office 

of Performance and Quality. 

55 

Mr. GALLEGLY. And that part I appreciate. But historically, there 

is no requirement—I guess the threshold issue is I guess you can 

do a lot of things. But there is no requirement to explain anything 

when you put a ‘‘yes’’ down but when you put a denial there is a 

requirement for the rationale for the denial. That was my question. 

Mr. MAYORKAS. May I—— 

Mr. GALLEGLY. Sure. 

Mr. MAYORKAS. May I have a moment? 

Mr. GALLEGLY. It is my understanding that it is in the adjudication manual. That is my question. 

Mr. MAYORKAS. I will have to, if I may—— 

Mr. GALLEGLY. Would you check the adjudication manual? And 

we will check it, and just for the record we will make it a part of 

the record of the hearing. 

[The information referred to follows:] 

56 

Mr. GALLEGLY. I thank the panel for being here, and I apologize 

for getting started a little late. Unfortunately, I don’t nor does any 

Member of this Committee have much power over when the bells 

ring around here to go to vote. 

So thank you very much and I look forward to getting the responses on those couple issues that we discussed. With that, we 

will call up the second panel. 


72904C.eps
57 

Mr. MAYORKAS. Thank you, Mr. Chairman. Thank you. 

Mr. EDWARDS. Thank you. 

Mr. GALLEGLY. Introducing our second panel, I will let the witnesses be aware of the fact that their written statements will be 

entered into the record in their entirety and request that you keep 

your opening statement to the requisite 5 minutes, and with that 

I would like to introduce our first witness, Mr. Mark Whetstone. 

Mr. Whetstone is the president of the American Federation of 

Government Employees of that National Citizenship and Immigration Services Council. Mr. Whetstone joined the Immigration and 

Naturalization Service in 1999 and has since held numerous appointments. 

Throughout his career with U.S. Citizenship and Immigration 

Services, Mr. Whetstone has adjudicated thousands of applications 

for work permits, travel documents, permanent residence and petitioned for immigrant workers. 

Our second witness is Mr. Bo Cooper, who is the partner of Berry 

Appleman and Leiden in Washington, D.C.’s office where he provides business immigration advice to companies, hospitals, research institutions, schools and universities. Mr. Cooper served as 

general counsel of the Immigration and Naturalization Services 

from 1999 until February of 2003. 

Mr. Cooper earned his J.D. from Tulane University Law School 

and holds a Bachelor of Arts from Tulane University. 

Welcome to both of you. 

Mr. Whetstone? 

TESTIMONY OF MARK WHETSTONE, PRESIDENT, NATIONAL 

CITIZENSHIP AND IMMIGRATION SERVICES COUNCIL 

Mr. WHETSTONE. Thank you, Chairman Gallegly and Ranking 

Member Lofgren, and Members of the Subcommittee. 

I greatly appreciate this opportunity to provide our union’s input 

at today’s hearing. My focus today is specifically on the effects of 

adjudication, performance expectations and training levels of the 

immigration services officer as it relates to benefit fraud in the immigration service system. 

It is our belief that continuing pressures in the production environment of adjudications coupled with inadequate levels of training 

pose a significant threat to protecting the immigration system from 

benefit fraud and consequently impacting national security. 

The recent report by the DHS OIG concerning the effects of adjudication policies on fraud detection correctly points to the need for 

USCIS to permit more time for officers’ review of case files. 

This isn’t the first time the agency has heard the same recommendation. In May of 2002, the DOJ OIG suggested that performance standards should be changed to allow more time to review files and seek additional information. In response to this most 

recent recommendation, USCIS did not concur and seeks to further 

analyze the need for additional time by adjudicators. 

There are many things in the most recent report that we can embrace. However, the efforts by USCIS in the area of performance 

measurement is not one of them. The report would lead you to believe that the production performance measures for all adjudicators 

were rated non-critical in fiscal year 2011. 

58 

In fact, only 40 percent of the adjudicator population nationwide 

realized that adjustment in their performance standards and even 

then the reality was that other critical elements were used to entice officers toward production quotas. 

The larger segment of adjudicators working in field offices saw 

no reduction in the quantity-based production standards. Several 

officers reported working through rest and lunch breaks to reach 

quota levels necessary to attain just satisfactory ratings. 

Again, this is nothing new to CIS. In 2002, the GAO reported 

that because performance appraisal system was based largely on 

number of cases processed rather than on the quality of the review, 

adjudicators are rewarded for the timely handling of petitions rather than careful scrutiny of their merits. 

Although the recent OIG report states that the decision to make 

production standards non-critical is a significant change that 

should improve fraud detection and national security, USCIS has 

recently moved to change that standard back to a critical element. 

In reality, production pressure was never off and this latest action is a reversal of their stated position in the report. In that same 

report, supervisors and managers noted that adjudicators missed 

alias names for benefit seekers when conducting security checks 

during the adjudication process. 

They go on to assert pressures to adjudicate quickly may hinder 

an adjudicator’s ability to identify and query alias names during 

the security check process. It is our belief that such issues in this 

area pose direct hindrance to the detection of immigration benefit 

fraud. 

In an August of 2011 report, the DHS OIG observed that USCIS 

has not developed a formal post-basic fraud training program. Additionally, fraud prevention training is not provided to all adjudicators responsible for just adjudication of specific benefits. 

We understand USCIS is currently developing post-basic training 

fraud courses. We also are told that USCIS has agreed to begin the 

necessary steps to ensure officers receive this training annually 

once their courses are developed. 

Although we can applaud any steps toward adequate training for 

adjudicators, our concern is the frequency of the training will be inadequate. The people perpetrating fraud work hard every day to 

alter their methods. 

Providing training to officers only on an annual basis would continue to leave them without sufficient confidence to know when to 

refer cases of suspected fraud to officers with more expertise and 

equipped with advanced research capabilities. 

We believe this is a gaping hole. We know that it is not easy to 

strike the balance between efforts to process the volume of requests 

for immigration benefits while protecting the system from fraud. It 

is our belief that USCIS policies in this area of production expectations and frequency of training could have a negative effect on the 

detection of immigration benefit fraud. 

This concludes my statement. I look forward to answering your 

questions. 

[The prepared statement of Mr. Whetstone follows:] 

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Mr. GALLEGLY. Thank you very much, Mr. Whetstone. 

Mr. Cooper? 

TESTIMONY OF BO COOPER, PARTNER, 

BERRY APPLEMAN AND LEIDEN, LLP 

Mr. COOPER. Now? Thanks. 


MW-3.eps
62 

Thank you, Chairman Gallegly, Ranking Member Lofgren and 

distinguished Members of the Subcommittee. I really appreciate 

the opportunity to join in this hearing today. 

I would like to focus my remarks on the inspector general’s report and I would like to state at the outset that when I was in government much that we did was made better because of recommendations that were given to us by the inspector general. 

They serve a critical role and much that the USCIS does will be 

made better by the recommendations in this report. There is a lot 

in there that will help the agency to become better in its critical 

responsibility to ferret out fraud in the system and to improve our 

national security protections. 

But there are certain aspects of the report that are not in this 

vein and that, in my view, lack foundation, they are contrary to 

what happens in the actual adjudications world and they would be 

deeply problematic if they were to inform policy choices. 

I would like to focus my testimony on four points today. The first 

is that the inspector general’s conclusions that the USCIS fosters 

a ‘‘get to yes’’ culture and that it has got an institutional bias in 

favor of approvals and against requests for additional evidence 

were made without any evaluation of agency data or any analysis 

of what the agency’s actual adjudication patterns are. 

Second, the data that surrounds the agency’s actual adjudication 

patterns doesn’t support this conclusion. It refutes them. For the 

key employment-based benefits adjudications, as we have heard 

today, the rates of denials and RFEs have skyrocketed over the last 

several years. 

Third, these actual adjudications patterns have serious real-life 

consequences that hurt the country’s interests. These programs 

exist to foster economic activity that helps the United States. 

Careful responsible employers are having greater and greater difficulty because of these actual adjudications patterns in bringing in 

talented foreign professionals who could help drive American 

growth and foster economic recovery. 

And fourth, any of the report’s recommendations that would lead 

to guidance to simply encourage numerically more RFEs or to raise 

the standard of proof in a way to prompt more denials would just 

make this consequence worse. The data indicates that if there is an 

adjustment trend to be managed at USCIS, certainly in the employment-based adjudications, it is not a trend toward reckless approvals. 

It is a trend toward more restrictive decision making in programs that could promote economic growth in the United States. 

The key issue with this aspect of the report—again, many elements of it were good—the key issue is that it drew conclusions 

based on discussions and statements that are important as statements and as indications of what adjudicators feel but they should 

have led to more analysis of data. 

They were conclusions that would lead anyone, and the Subcommittee was right to hold this hearing, anyone to think it is a 

rubberstamping agency that is approving questionable adjudications. 

63 

But the data don’t show this at all. As we have focused on today, 

the data shows an agency moving in the opposite direction and the 

L-1B program is the clearest indication. 

Denial rates have quadrupled since 2008 in the L-1B program. 

RFE rates have skyrocketed so that two-thirds of the matters that 

are filed in the L-1B arena are subject to requests for additional 

evidence. 

This is, clearly, contrary to the notion of a rubberstamping agency that is trying to handcuff its adjudicators in their efforts to 

reach correct decisions. And the L-1B program is, in addition to the 

starkness of the statistics, it is an important illustration because 

of the strength with which it illustrates the problems that result 

from these adjudications patterns. 

I think we can all agree that not all brain power in the world 

exists in the United States and these programs, these L and H and 

O programs, exist because of Congress’ recognition that it can be 

in our economic interest to bring these people onto our team in the 

U.S. It helps American workers. It helps the U.S. economy. 

These kinds of adjudications patterns are restricting the ability 

of American employers to do that in ways that could help return 

job growth and economic strength to this recovery, and therefore, 

in my view, it was not responsible advice to the agency or to the 

Congress to draw the conclusions based on the absence of data that 

were drawn in the inspector general’s report and that should not 

be the basis of policy making in this arena. 

Thanks, and I would be glad to respond to any questions that the 

Subcommittee may have. 

[The prepared statement of Mr. Cooper follows:] 

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Cooper-7.eps
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Mr. GALLEGLY. Thank you very much, Mr. Cooper. 

Mr. Cooper, your testimony discusses at length the USCIS data 

showing that denial rates in the L-1B visa category had jumped 

from 7 percent in 2007 to 27 percent in 2011. 


Cooper-8.eps
72 

Looking at this same USCIS data, did you also notice that the 

overall denial rate for non-immigrant working petitions has fallen 

over 30 percent since President Obama took office? 

Mr. COOPER. I am sorry. Which category was that, Mr. Gallegly? 

Mr. GALLEGLY. That was all non-immigrant visas. 

Mr. COOPER. From my reading of the data and my experience in 

seeing the process, there has been an increase in denial rates. Now, 

I think it is important to emphasize that there is not a correct denial rate. There is not a correct approval rate. 

Adjudicators have to work in every case to figure out what the 

right application of the facts and the law are and get to the right 

result. 

My point is, what I wanted to emphasize is that with these skyrocketing RFE and denial rates that should cause us to question 

very seriously the conclusions that the agency is prodding its adjudicators to rubberstamp questionable applications in a way that is 

leading to fraud. 

Mr. GALLEGLY. On that note, over to Mr. Whetstone. 

Is it your understanding that the quantity of cases processed will 

soon once again be officially considered as a critical element of the 

adjudicators’ performance rating? 

Mr. WHETSTONE. That is absolutely correct. As a union, we received notice from the agency in September that they intended to 

move the 40 percent—in fact, that is all that were really non-critical. Of the ISOs in the country only 40 percent were placed on a 

non-critical element. We received notice in September that yes, 

they are moving right now to take the element back to critical. 

Mr. GALLEGLY. What are the national security implications of 

pressure on adjudicators whether it come from outside immigration 

attorneys or from USCIS officials or supervisors to improve immigration benefits? 

Mr. WHETSTONE. Thank you. I think that the easiest way to say 

that is the wrong person getting the benefit. If you have pressures 

being placed on you to move quickly in adjudicating cases, the likelihood of you cutting corners, possibly letting mediocre cases, you 

know, borderline cases just flip to yes instead of to a denial, I think 

that would be the national security implications. 

Mr. GALLEGLY. Okay. 

Mr. Cooper, are you familiar with the July 2008 Administrative 

Appeals Office decision in the GSE case? 

Mr. COOPER. Yes, Mr. Chairman. I am. 

Mr. GALLEGLY. Are you familiar with the issuance of the Neufeld 

H-1B memo? 

Mr. COOPER. Yes, Mr. Chairman. 

Mr. GALLEGLY. Do you agree that according to the data provided 

by USCIS a rise in denial rates for non-immigrant worker petitions 

seems to have occurred shortly after the GST decision and around 

the time of the Neufeld memo issuance? 

Mr. COOPER. Yes, I do. 

Mr. GALLEGLY. Would you like to maybe just expand that a little 

bit? 

Mr. COOPER. Yes, I would. 

First, with respect to the Neufeld memo on H-1Bs, that was focused principally, as was noted before, on the employer-employee 

73 

relationship and it was addressed mainly at the agency’s perceived 

problems when H-1Bs were being sent to third-party, to client 

sites, rather than the site of the employer. What we have seen in 

practice is that the rise in H-1B RFE rates and the rise in H-1B 

denial rates actually affects cases far beyond those that are just 

thirty-party placement cases. 

Likewise, in the GST situation this, in my view, is a very serious 

adjudications issue at the agency because, in my view, the USC 

takes the position, correctly I think, that GST is a non-precedent 

decision. But I actually do think that it is very closely tied to the 

increase in denial rates for L-1Bs. 

My real concern with that case and its effect is that that is precisely an example of a situation where, despite the absence of agency policy making and despite the kinds of interaction with the public that the Administrative Procedures Act would call for, for example, when there is to be a policy change, this is an adjudicationslevel change toward greater restriction that has brought about severe limitations in the program in ways not that ferret out fraud 

but that actually hinder businesses from being able to bring in employees who could help spur economic recovery in the United 

States. 

Mr. GALLEGLY. I see my time has expired. 

I yield to the gentlelady from California, Ms. Lofgren. 

Ms. LOFGREN. Well, first, let me thank both of the witnesses for 

not only being here today but their service—Mr. Whetstone, your 

service in the public and, Mr. Cooper, your many years of service 

as general counsel. They are appreciated and the expertise you 

bring here today is appreciated. 

Looking at the report, 109 individuals said that they didn’t have 

enough time on the interviews and I am sure that those 109 individuals were sincere in that analysis. However, we have got to 

have some kind of—I mean, in the private sector you are going to 

have some measurement of outcome. 

I mean, I am assuming, Mr. Whetstone, that you are not suggesting that productivity not be a factor at all in considering how 

people are doing as employees. 

Mr. WHETSTONE. No, not at all. But I think that it should be 

taken from possibly the individual level to team level or office level 

where you—— 

Ms. LOFGREN. But if you have one guy who is not doing anything 

and the rest of the team is knocking themselves out you should be 

able to look at the guy who is not performing. 

Mr. WHETSTONE. I think the proper motivational efforts by the 

supervisory staff when they recognize that would be appropriate, 

yes. 

Ms. LOFGREN. Okay. Thank you very much. I just thought it was 

important to clarify that. 

Now, Mr. Cooper, you were general counsel under the Bush administration just before the current administration and do you see 

a difference—now you are in the private sector—do you see a difference in terms of in your interactions with the agency that the 

agency is trying to approve questionable applications? 

74 

Mr. COOPER. I don’t see at all that the agency is trying to approve questionable applications. In my experience, what the agency 

is doing is narrowing access to these critical visas. 

Ms. LOFGREN. Now, I will just lay out. I mean, we don’t have 

really good data at all as to the quality, as Director Mayorkas had 

said. I mean, what is it, lies, darn lies and statistics? 

I mean, we have some numbers but you really can’t—what we 

want is quality decisions. We don’t want fraudulent applications to 

be approved but legitimate applications, we don’t want to tie them 

up because we pay a price in that case as well. 

I had a concern just based on anecdotes that L-1s were substituting for H-1Bs when we hit the H-1B cap and, honestly, I 

shared that concern with the agency because that would be an improper use of the L-1 visa. 

Are you seeing that the request for evidence is related to ferreting out what, of the L-1B applications, really were more properly H-1B individuals? 

Mr. COOPER. I do think there is a sentiment among adjudicators 

that Ls are being improperly substituted for Hs and that that is 

driving a lot of their general instincts to be a little bit narrower 

on Ls. 

I mean, in my view, there is not a situation where a case must 

be an H or must be an L. They have differing requirements. 

Ms. LOFGREN. Right. 

Mr. COOPER. But there certainly are cases where a person’s 

qualifications and the job qualifications will be overlapped between 

the two and in that instance it seems perfectly appropriate for the 

employer to be able to choose whichever one the employer would 

like. 

And so in that instance, I don’t think there is such a thing as 

really improperly using an L for one that should have been an H. 

But one point that is very important about the—you know, you 

raise the issue of the numbers of filings that are being made. 

One thing that is very illustrative is that this spike in RFEs, request for additional evidence, is coming at a time when actually the 

numbers of L-1B—— 

Ms. LOFGREN. Are down. Yeah. 

Mr. COOPER. Petitions that are being presented to USCIS are 

dropping and that is inconsistent with the experience that I had in 

government and since where when there is a program that seems 

to have some gap or some loophole that would draw fraud usually 

the numbers of actual petitions—— 

Ms. LOFGREN. Yeah. It usually spikes. 

Mr. COOPER. Go up in that setting. 

Ms. LOFGREN. Yeah. Can I ask you a question about sort of the 

informal appeals process, for lack of a better name? 

I used some real-life examples in my opening statement where— 

and, you know, we are all human. We can all make a mistake. You 

read a chart and it says 15,000 but if you read at the top it is in 

thousands so it is actually 15 million. 

The inspector general seemed to indicate that if an inspector had 

made an error and read that as 15,000 instead of 15 million it 

would be somehow improper to point that out so it could be corVerDate Aug 31 2005 11:01 May 01, 2012 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021512\72904.000 HJUD1 PsN: DOUGA
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rected and that the only way to do it would be to go to a 2-year 

appeal process. 

Isn’t that what we are talking about? I mean, if you can’t just 

give some input oh, by the way, you have denied my client under 

the Cuban Adjustment Act but he is not Cuban and he is not applying under the Cuban Adjustment Act, wouldn’t that be a helpful 

piece of information to give to the adjudicator, not heavy handed 

but here is a mistake? 

Mr. COOPER. I think that is important both from the standpoint 

of those who present petitions and applications to the system and 

from the standpoint of the agency itself. 

First, from the standpoint of the user of the system, the person 

who is making the application, the inspector general’s report seems 

to suggest I guess it is premised on the notion that a formal appeal 

to the Administrative Appeals Office is the only appropriate route 

to be followed where a petitioner thinks a decision was mistaken. 

But it is important to just reemphasize that right now, according 

to its most recent processing times report, an appeal of an H-1B 

petition that was denied takes 22 months to be resolved. An appeal 

of an L-1B petition that was denied takes 23 months to be resolved, 

almost 2 years. 

That is a time frame that simply does not work in the business 

world that is meant to be served by the proper use of these programs and so that is just not a viable alternative way. That is just 

not a viable means of addressing problems in today’s business 

world. 

Second, from the standpoint of the agency, it is actually in the 

agency’s interest to have situations pointed out to them that they 

can—if there has been a mistake that they can correct it in a way 

that is prompt and that doesn’t require the additional resources 

that get tied up in dealing with an administrative appeal where it 

is not necessary and so on. 

And so, in my view, there should be better access for these kinds 

of situations where people are trying to present the agency with 

something that they should have another look at, not less. Obviously, if people are, you know, calling and saying, can you do me 

this favor as my pal or that—— 

Ms. LOFGREN. That would be wrong. 

Mr. COOPER. It is entirely inappropriate. But that is not, in my 

experience, either inside or outside the prevailing culture within 

the agency. 

Ms. LOFGREN. My time has expired, Mr. Chairman. Thank you. 

Mr. GALLEGLY. Thank you, the gentlelady. 

Mr. Gowdy? 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Whetstone, do you believe that there is a culture of trying 

to ‘‘get to yes?’’ 

Mr. WHETSTONE. In a short answer, no, I don’t. I believe that 

there are some folks that have that perception. I believe that sometimes the way—I am taking this from folks that I talk to regularly—I believe that they sometimes have that perception. 

There are some people that do have that perception. But I don’t 

know that that is—there is certainly nothing stated. 

76 

Mr. GOWDY. Well, perception is important, perhaps only secondary to reality. So let me see if I can venture into reality for a 

second. 

It seems as if, statistically, denials are down, approvals are up 

and fraud referrals are down. I don’t get out like I used to but I 

don’t think the human condition has changed that much since 

2009. So are we just getting better quality applicants or how do 

you explain the statistical discrepancies? 

Mr. WHETSTONE. Well, I think that, as you laid it out, Congressman, I would say that the pressures to move the workload might 

have a lot to do with that, and coupled with people or adjudicators’ 

discomfort with the level of training that they have in the area of 

detecting fraud. 

Mr. GOWDY. So it is easier to say yes than no. 

Mr. WHETSTONE. Nobody complains about an approval. They only 

complain about a denial. 

Mr. GOWDY. So why did you say no when I first asked you 

whether there was a culture of ‘‘get to yes?’’ Because it seems like 

you described a culture of ‘‘get to yes.’’ 

Mr. WHETSTONE. I don’t know that you would call—I don’t agree 

with the term ‘‘culture of get to yes,’’ I guess, that phrase. I don’t 

think that we have a culture—— 

Mr. GOWDY. How about disproportionate benefits to saying yes as 

opposed to no? Do you agree with that? 

Mr. WHETSTONE. I would say that there are pressures placed on 

adjudicators to approve cases rather than go through the denial 

process. 

Mr. GOWDY. Do you agree or disagree that pressure from outside 

attorneys can get a denial turned into an approval? 

Mr. WHETSTONE. No. 

Mr. GOWDY. You disagree with the email streams that we have 

where that, in fact, has happened? 

Mr. WHETSTONE. I am not familiar with those. 

Mr. GOWDY. Are you aware of any instances where pressure was 

brought by outside counsel to supervisors and get people to change 

their mind or else overrule them? 

Mr. WHETSTONE. I think on a regular basis, particularly in the 

interview situations and field offices, that you have outside counsel 

taking issue with how the—if it falls against their client that they 

take issue with the way the interview was conducted, et cetera, 

and I think we see that on a frequent basis in the field offices. 

In the service centers, it is probably less frequent. But I have 

known of instances where an AILA attorney or someone would 

make a complaint about some decision that they received and it 

would get reworked, if you will, and the officer is left with the impression that it was the outside influences that caused that decision to go another way. 

Mr. GOWDY. Well, if we agree on the number that fraud referrals 

are down 22 percent and if we exclude the option that the human 

condition has improved dramatically since 2009, what other explanation would there be for a reduction in fraud referrals? 

Mr. WHETSTONE. Well, I think that officers might—like I said before, their training level—they probably don’t have the confidence 

to actually refer. I think it—we have had reports from individuals 

77 

saying that their supervisors discouraged referrals to the fraud detection officers. 

Mr. GOWDY. Are you aware of any retaliation? I think Chairman 

Gallegly began this by making reference to Senator Grassley, who 

was approached by whistleblowers. 

Are you aware of any retaliation against the whistleblowers or 

any complaints of retaliation? 

Mr. WHETSTONE. I am aware of the complaints by those whistleblowers. But as far as retaliation, I can’t say that I am aware of 

that, no. 

Mr. GOWDY. But those complaints have not been adjudicated yet, 

or if they have been you—— 

Mr. WHETSTONE. You know, I have really lost track of that case. 

I don’t know, you know—— 

Mr. GOWDY. I think it would be cases, plural. 

Mr. WHETSTONE. There is two there, I think. 

Mr. GOWDY. I would yield back the balance of my time, Mr. 

Chairman. 

Mr. GALLEGLY. I thank the gentleman. 

Mr. King? 

Mr. KING. Thank you, Mr. Chairman. I thank the witnesses. 

I would just start, first, with Mr. Cooper and I recall your testimony. You addressed earlier that data refutes the claims of the 

previous witnesses and some of the reports that you have seen before this Committee today, and you pointed to the L-1B program 

as the example of the data that refutes the claim. 

Could you point to another program, another visa, that also refutes the claim? 

Mr. COOPER. The L-1B is the most—is the sharpest example numerically. But, certainly, across the employment-based programs 

the trend is just the same. With H-1Bs the—— 

Mr. KING. But if we went—excuse me. If we went, I will just say 

the Obama administration 2009 to 2011, and I look at that data, 

that is the most recent trend we have under current administration. 

So do you have any other visa categories other than L-1B that 

would support your position with regard to the data demonstrating 

the opposite of the balance of the testimony here, other than your 

own? 

Mr. COOPER. Sure. Well, in the H-1B program, of course, if you 

go back to 2007 it went from 11 percent to 29 percent in 2009 and 

it has subsided since that 29 percent rate. But it is still much higher than it had been in, say, 2007. 

Mr. KING. We know that there has been some reforms that took 

place that tightened down the regulations. I think you answered 

that response. It was to the question of Mr. Gallegly on that. 

So I just look at the rest of the data and I would just make the 

point I have looked at the last 2 years and I can find another example that supports your position. It is as marginal as can be but 

it is L-1A in 2009 until 2011. In that gap that I am addressing, 

it went from 13 percent to 14 percent denial rate. 

So, you know, statistically, level but the balance of this shows 

the opposite in the data that I am looking at. And I would just ask, 

in your leisure time if you could review the data for the 2009 

78 

through 2011, which would be the most pertinent data we have for 

the current administration. And not to beat that point. 

I just recognize your point but it appears to be an exception on 

the current administration information. 

Another question is, listening and thinking about what the IG’s 

testimony was, if it does come down to who you know and may or 

may not—I have listened to Mr. Gowdy’s exchange also with Mr. 

Whetstone and you may or may not know that either, whether it 

comes down to who you know depending on where you sit and what 

you hear. 

But if the IG went in and did a thorough examination and came 

back with a report and if it was an issue of who you know, how 

would he know that it was who you know and how could you quantify that? 

Can you imagine any way that the IG could actually conduct an 

investigation to come to a conclusion that there is data points along 

the way that would bring it back to it being influenced by who you 

know? 

Mr. COOPER. Yeah. I think the data points would actually be 

quite scant because the fact is that there is no real formal way to 

reach into the agency that is effective other than the actual filing 

of the petition and the paper responses when they ask you for more 

information. 

And so it is not surprising that that sort of impression emerges 

from the commentary of the people who were interviewed and those 

who responded to the district-level online survey. And, you know, 

I think it is important to note that this sort of sentiment does exist 

in the agency. It certainly did when I was there. And it is not that 

the sentiment is unimportant. It is very important to have structures that where you get buy-in from your adjudications personnel, 

structures where you can make a policy and have your adjudicative 

personnel abide by it substantively and so on. So I am certainly not 

disputing that that sentiment exists. 

Mr. KING. Mr. Cooper, would we agree that even when the sentiment exists it may or may not be based on fact and that in the end 

it is going to be a subjective opinion from wherever you sat? 

If you are an inspector, if you are an IG investigator, if you are 

an attorney that is an advocate, you are going to have a different 

perspective on how much influence might change this. But would 

we agree that immigration attorneys do attempt to influence in 

that fashion? 

Mr. COOPER. Oh, it is certainly the case that attorneys try to 

bring to agency’s attention when they think that there has been a 

mistake, a substantive mistake in the adjudication. That certainly 

happens and it should happen more often in my—— 

Mr. KING. But, I mean, we are not presuming that a well-positioned attorney wouldn’t drop a name here and there when they 

are discussing this with the inspectors—with the investigators. 

Mr. COOPER. I am not making an assumption one way or the 

other on that. I can agree—— 

Mr. KING. But, I mean, we are people of the world here and we 

couldn’t possibly assume that that doesn’t happen. I don’t think we 

need to examine that any further. I just make the point that it is 

subjective. 

79 

People do try to influence with who they know. Whether it gets 

through or not is another question and if it does get through there 

is no way to quantify it. And just would you agree with that, Mr. 

Cooper? 

Mr. COOPER. I would agree with that. It is subjective. In my 

view, it is not at all the case that the agency is owned by outside 

counsel. 

Mr. KING. Okay. And watching my clock turn here, do you think 

that it is proper for immigration attorneys to have direct access to 

USCIS supervisors? 

Mr. COOPER. I think that if there were regular access the system 

would probably work better. 

Mr. KING. If you think there were regular access from immigration attorneys to the USCIS supervisors? 

Mr. COOPER. Not necessarily supervisors but to the system. You 

know, as of right now there is an appeal, there is the 800 number 

for the customer service number and there is the paper filing and 

none of those is an effective way of having an efficient exchange 

of the information—— 

Mr. KING. You may advocate for an open dialogue but then if 

there is direct access to a supervisor wouldn’t that also mean taking it up the chain and trying to apply the leverage and the influence? 

Mr. COOPER. Yeah. I am not talking about leveraging influence 

with supervisors. I am just saying that if there were a better way 

for the agency to have access to information and arguments that 

could help it understand when it may have made a mistake, and 

I know this from experience inside the government, that can help 

you to avoid unnecessary litigation. It can help you to avoid unnecessary administrative appeals cost and it can lead to a lot of benefits for both sides. 

Mr. KING. So you are speaking objectively and procedurally rather than from personal influence. 

Mr. COOPER. I am speaking from my experience inside the government and my observations since. 

Mr. KING. Thank you, Mr. Cooper. 

Mr. Whetstone, I am sorry I didn’t have time to get to you but 

I am sure you are the reason for the sharpest knives in the drawer. 

So I appreciate you coming here to testify and the service you have 

and I yield back the balance of my time. 

Mr. GALLEGLY. I thank the gentleman and—— 

Ms. LOFGREN. Mr. Chairman? 

Mr. GALLEGLY. Yes? 

Ms. LOFGREN. May I ask unanimous consent to include in the 

record the denial rates showing a massive increase in denials between the Bush administration and the Obama administration? 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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Mr. GALLEGLY. And I would ask unanimous consent to enter into 

the record a statement from the Senate Judiciary Committee Ranking Member Charles Grassley noting that the ‘‘get to yes’’ culture 

is a direct contradiction to our number-one priority of protecting 

the homeland and that undue pressure on adjudicators must be 

dealt with in order to ensure integrity and root out fraud in the 

immigration system; number two, the statement of John Lynch, a 

USCIS adjudicator in the San Diego field office whose personal exVerDate Aug 31 2005 11:01 May 01, 2012 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\021512\72904.000 HJUD1 PsN: DOUGA

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perience validate the OIG findings that there is pressure of adjudicators to approve applications despite an adequate processing 

time or fraud indicators; and number three, an email chain between the USCIS officials stating that USCIS wants to get to the 

point where the cases denied are those that couldn’t possibly be approved under the law. 

With that, I want to thank the—without objection. Hearing no 

objection, those requests will be added to the record of the hearing. 

[The information referred to follows:] 

Prepared Statement of the Honorable Charles E. Grassley, 

a U.S. Senator from the State of Iowa 

Congressional oversight is often an overlooked function for members of Congress. 

It’s not always glamorous and it’s a lot of hard work. However, it’s an important 

responsibility for the Legislative Branch that helps our government work more efficiently for the American people. 

I commend the House Judiciary Committee for having a hearing today to discuss 

the shortcomings of our immigration benefits adjudication process. Oversight of this 

process is crucial to ensuring that our immigration system works for all people, including foreign nationals who wish to live and work in the United States. 

The Inspector General at the Department of Homeland Security issued a report 

in January of this year entitled, ‘‘The Effects of USCIS Adjudication Procedures and 

Policies on Fraud Detection by Immigration Services Officers.’’ The report provides 

an insightful look through the eyes of agents on the line. The Inspector General 

issued this report after I expressed concern about fraud detection efforts by U.S. 

Citizenship and Immigration Services. 

While I have long been interested in fraud prevention and rooting out abuse in 

many visa programs, I really dived into the benefits adjudication process in the fall 

of 2010. Immigration officers in the field reported to me that they were being subject to pressure to approve applications and petitions because that was the message 

of managers in headquarters. Many officers felt intimidated and pressured. Some 

were being relocated. Some were being demoted. The stories were similar, and it appeared that people in Washington were preaching a ‘‘get to yes’’ philosophy when 

it was apparent that the answer should have been ‘‘no.’’ 

In September of 2010, I wrote a letter to USCIS Director Mayorkas. I was 

unsatisfied with his response to issues that whistleblowers brought up to me. Since 

he refused to answer the allegations, I took the issue to the Secretary and the Inspector General. I told the Secretary that, after many interviews, the evidence suggested that Director Mayorkas was fostering an environment that pressures employees to approve as many applications as possible. 

According to several USCIS employees, Director Mayorkas was less concerned 

about fraud and more about making sure officers were looking at petitions from the 

perspective of the customer. Some said that USCIS leadership expressed a goal of 

‘‘zero complaints’’ from ‘‘customers,’’ implying that approvals were the means to such 

an end. The Department of Homeland Security conducted a human capital survey 

where USCIS scored low because employees felt pressured by upper management 

to approve applications. Many said that USCIS leadership ‘‘cultivated a culture of 

fear and disrespect.’’ 

So, the Inspector General agreed to investigate. He said that the ‘‘integrity of the 

benefit issuance process is vital,’’ inappropriate pressure on the adjudications process must be avoided. Nearly 52% of respondents in their survey said that USCIS 

policy is too heavily weighted toward promoting immigration. The fact that a quarter of the immigration service officers surveyed felt pressure to approve questionable 

applications is alarming. There are all kinds of pressure, including from supervisors 

and outside attorneys. There’s also pressure to approve in order to meet agency performance goals. 

It’s no secret that USCIS officers have been judged on quantity, not quality of 

their work. For many years, adjudicators have felt pressure to approve so many 

cases in an hour or a day. Moreover, according to the Inspector General, 90 percent 

of respondents felt they didn’t have sufficient time to complete interviews of those 

who seek benefits. The Inspector General said that ‘‘the speed at which immigration 

service officers must process cases leaves ample opportunities for critical information to be overlooked.’’ Adjudicators are more apt to approve a petition because it 

takes less time, and they fear getting behind if they have to put a lot of effort into 

a case. 

83 

I applaud the Director for initiating new performance measures so that there’s 

more focus on fraud and security. However, like the Inspector General noted, many 

employees will continue to feel as though their work hinges on numbers. Despite 

the new measures, immigration service officers and supervisors are concerned that 

production remains the focus. They feel this way because of ‘‘the perception that 

USCIS strives to satisfy benefit requesters in a way that could affect national security and fraud detection priorities.’’ The new performance measures may not be perfect. They may need to be massaged. I hope the Director takes comments of agents 

into consideration as this issue evolves. 

Unfortunately, however, I am concerned that the agency is not taking seriously 

the Inspector General’s recommendation to develop standards to permit more time 

for review of case files. In fact, USCIS did not concur with this recommendation and 

said that additional time is not the solution to addressing national security and 

fraud concerns. Director Mayorkas should reconsider the department’s initial response to this recommendation and create an environment that ensures a thorough 

and complete analysis of all applications. 

The Inspector General also recommended that USCIS develop a policy to establish 

limitations for managers and attorneys when they intervene in the adjudication of 

specific cases. This recommendation was made because it appeared that certain 

high-ranking employees at USCIS headquarters were inserting themselves into specific cases, and in one case, putting pressure on adjudicators to approve an application when the individual clearly wasn’t eligible. The report also discusses how private attorneys and other parties contacted USCIS managers or attorneys to request 

a review of a case that an immigration service officer had denied. The perception 

for many officers was that outside attorneys had too much influence in the process. 

While the Director of USCIS does not support special treatment for complainants, 

it’s concerning that the agency did not fully concur with the recommendation to 

issue a policy that ends any informal appeals process and the special review of denied cases. 

Overall, this report is eye-opening. The Inspector General discussed the adjudications process with many officers in the field, and brought these issues to light. He 

made many thoughtful and serious recommendations that should not be ignored. 

Unfortunately, despite what the Inspector General has reported, there are still 

nay-sayers. People within the agency want to discredit the research and findings of 

the Inspector General. I’m told that some aren’t taking this report seriously. That’s 

why leadership on this issue is crucial to enacting any true reform. 

In 2008, I was glad to hear the president-elect talk about making this the most 

transparent government ever. Unfortunately, up to this point, this administration 

has been far from transparent. 

And, it’s clear that for the current administration, the rule of law is more about 

perception than reality. They’ve circled the wagons, made denials and generally 

been non-responsive to constitutionally proper inquiries by members of Congress. 

Since the founding of our country, our immigration laws have been a source of 

discussion. We were born a nation of immigrants. We have welcomed men and 

women of diverse countries and provided protection to many who flee from persecution. 

We have been a generous nation. Yet, we have seen our country face many challenges. During these struggles, it is important for lawmakers to bear in mind that 

the policies we make should benefit our country over the long term and that we 

must be fair to current and future generations. 

People in foreign lands yearn to be free. They go to great lengths to be a part 

of the United States. It’s a privilege that people love our country and want to become Americans. At the same time, however, we must not forget one great principle 

that our country was founded on. That is the rule of law. We want to welcome new 

Americans, but we need to live by the rules that we’ve made. We cannot let our welcome mat be trampled on and we cannot allow our system of laws to be undermined. 

For years, USCIS has seen themselves as a service-oriented agency. They strive 

to make their customers happy. Unfortunately, this ‘‘get to yes’’ culture is a direct 

contradiction to our number one priority of protecting the homeland. USCIS must 

do more to ensure that fraud, abuse, and national security are a higher priority 

than appeasing its customers. It is going to take a strong-willed and determined 

leader to change this culture. 

Reform shouldn’t be a bad word. It should be embraced so that immigrants continue to feel welcomed in America and receive the best service possible when trying 

to navigate the bureaucratic process. 

Again, I commend the committee for discussing the integrity of our immigration 

system, including our benefits adjudication process. With constant vigilance, we can 

84 

root out fraud and abuse, and enact reforms that will be meaningful for future generations of new immigrants. 

Prepared Statement of John Lynch 

Mr. Lynch’s Background: 

John Lynch serves as an Immigration Services Officer or ‘‘ISO’’ (adjudications officer) at the San Diego Field Office of USCIS. Mr. Lynch received his bachelors degree from the University of California at Berkeley and his Masters Degree in Business Administration from San Francisco State University. In addition to receiving 

his undergraduate degree, Mr. Lynch also was a Distinguished Military Graduate. 

In between his undergraduate and Graduate Degrees, Mr. Lynch served as an Army 

Intelligence Officer, providing daily intelligence briefings and analysis on Russian 

military and economic assistance to North Vietnam and troop strength along the 

Russian/Chinese Border. Mr. Lynch personally briefed Senator McCain’s father, Admiral Mc Cain, and House of Representatives Armed Services Committee Chairman 

Sonny Montgomery, when Senator McCain was a Prisoner of War in Hanoi, North 

Vietnam during that war. After completing his military Service, Mr. Lynch worked 

for three Fortune ranked companies: IBM, Bank of America, and General Electric 

in Corporate Finance positions before returning to government service with USCIS 

in 2003. Mr. Lynch has served as an adjudicator for the past ten years in Southern 

California, working in the Los Angeles, Santa Ana, and San Diego Field Offices. He 

also worked as an Asylum Officer at the Los Angeles Asylum Office for 18 months, 

and briefly at the California Service Center, as a Center Adjudications Officer. In 

addition to his Immigration Officer duties, Mr. Lynch coordinated and emceed the 

largest military naturalization ceremony aboard the USS Midway in San Diego on 

July 2, 2010. He also serves as Vice President of the AFGE ICE Local in San Diego, 

representing adjudicators from that District. 

The Inspector General of the Department of Homeland Security issued a report 

on adjudications on January 5, 2012. This report comments on the pressure by management for adjudicators to decide or ‘‘rubber stamp’’ applications for permanent 

resident status (green cards) and naturalization. This report also recommends that 

adjudicators be given more time to review files prior to conducting an interview. The 

adjudications conducted in the field are always face-to-face meetings, whereas the 

adjudications conducted at the Service Centers are paper or ‘‘non-interview’’ decisions. If the adjudicators at the Service Centers determine from a file that more information is warranted, they will send a request for information ‘‘RFE’’ or send the 

file to a Field Office for a personal interview. 

While it is true that there is tremendous pressure on adjudicators to approve applications, the report does not mention the threat that adjudicators face that a file 

one day could land on the Region’’s 120-day aging report (date of filing to decision) 

that is the prime motivator supervisors and field office directors use to push Adjudicators to a decision. Furthermore, any file that ages to this report is then reported 

to District and Region management with the reason why the file is still with the 

adjudicator. 

Another accelerant for adjudicators to approve applications is the quarterly audit. 

Supervisors pressure adjudicators normally after the first interview to make a decision on an application. Typically these are applications where the adjudicator may 

find that something is not right after the interview, unusual travel patterns overseas, a lookout posted by another agency, or the fact that the applicant’s ‘‘lifestyle’’ 

is not supported by their income, in these cases, more analysis is need prior to a 

decision. 

To speed up the process even more, a greater emphasis today Is placed on the 

reliance on negative FBI name checks and negative fingerprint results to speed an 

approval. so the actual interview time is reduced further due to required computer 

entries to speed files along. In actuality, this limited time reduces the actual ‘‘talk’’ 

time with the applicant. So in the case of naturalization, the face time is usually 

taken up with testing on English and Civics tests and confirming ’’ yes or no’’ questions on the applications they have long prepared to answer. Little time is dedicated 

to actually finding out why the applicant wishes adjust status or naturalize. Adjustment of Status interviews are harder because the applicant usually has been in the 

country for a very short time, many times less than six months, so there is no established track record of the applicant’s residence in the United States file to help 

guide the adjudicator’s decision. In high volume countries such as China, tourist 

visa interviews usually last usually less than 5 minutes so there is added pressure 

on the adjudicator to make a quick decision on the application. Many tourists apply 

85 

***The material referred to, Exhibit A, was not received by the Subcommittee. 

to change their status or remain a long-term overstay before requesting to change 

their status. 

The adjudicators take their jobs seriously and are perhaps one of the hardest 

working groups I have seen both in and out of the government! But, every day that 

they come to work, it becomes a game of ‘‘Beat the clock’’, there is little margin for 

error. Any experienced adjudicator will tell you that if an adjudicator needs more 

time with an applicant to make a decision, the supervisors make it difficult to do 

so because they may either be in a meeting and unavailable, or the scheduling is 

so tight to meet production standards, that there is no one else to give the next file 

too, so the adjudicator falls behind, and it perpetuates itself throughout the day as 

it delays all the other remaining interviews in that adjudicators docket. This happens far more frequently than the agency is willing to admit. 

As previously stated, there is great pressure on adjudicators to approve cases and 

this is further compounded by the number of files assigned to an adjudicator per 

day to meet production standards. There is no better example of this than where 

I work in the San Diego District. This District has three field offices: San Diego, 

Chula Vista, and Imperial. For months now, due to the increasing national administrative requirements and more local requirements that are dictated in processing 

files, I have repeatedly asked management to reduce our daily docket load to create 

more time for the adjudicators to complete their work. This pressure is even more 

acute when processing green card interviews. Instead of helping to resolve the problem, management only adds to it. We have complained about this problem in Town 

Hall meetings, labor management meetings, and even after training courses, that 

it is impossible to keep up the aggressive interview pace, but since management is 

paid on production, it’s a topic they are not willing to resolve because such as resolution would ultimately come out of their pocket. Management usually prefers to 

delay the decision by asking the Union to send management a ‘‘proposal’’ that is 

only ignored, and the stress continues. With the increasing volume of cases in daily 

dockets and added computer entries, we have adjudicators experiencing increased 

health problems because management will not provide any relief. 

When we became aware that the IG had recently completed its report, we decided 

to gather reliable information from our other Southern California Field Offices, see 

Exhibit A,*** and the feedback was startling. Despite all our calls for relief, we 

learned that our San Diego field office adjudicators are assigned the highest number 

of cases per shift in all of Southern California. I immediately filed a grievance on 

February 2, 2012, and just last Thursday, prior to my departure for Washington, 

I was 

handed a letter indicating that our request for a reduced daily docket was denied 

and management’s response did not even address the issue, but only the form in 

which our request was submitted. But I also learned In its denial that management 

cannot even read the dates that appeared in my letter correctly, that the form number we used for our submittal was incorrect (this is not so because there is no such 

form CIS–827, it was only a placeholder that management and labor used until contract discussions were completed. The correct form is G–1162 and was the form submitted. But best of all, the agency’s denial was based not on the substance of the 

report, but only about the form of submission, and that was how it was decided. 

(See Exhibit A.) 

In conclusion, I leave it to the subcommittee to draw its own conclusion, based 

on the testimony presented, if adjudicators are being dealt with fairly by management in conducting interviews and that all the appropriate steps have been taken 

to guard against National Security threats and that benefit fraud can be an kept 

to a minimum. 

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Mr. GALLEGLY. I want to thank our two witnesses and, in fact, 

all of our witnesses. I think that this has been a productive hearing 

and without objection all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which will be forwarded and ask that the witnesses to respond as 

promptly as they can so the answers will be made a part of the 

record of the hearing, and without objection all Members have 5 

legislative days to submit any additional materials for inclusion in 

the record. 

Again, I want to thank the witnesses and thank the Members of 

the Committee. And with that, the Subcommittee stands adjourned. 

[Whereupon, at 4:38 p.m., the Subcommittee was adjourned.] 

Æ