Summary of Key Findings from The Immigration Subcommittee's USCIS Oversight Hearing

News Release

MAR 13 2015

SUMMARY OF KEY FINDINGS FROM THE IMMIGRATION SUBCOMMITTEE’S USCIS OVERSIGHT HEARING

WASHINGTON—U.S. Sen. Jeff Sessions (R-AL), Chairman of the Subcommittee on Immigration and the National Interest, released a summary of key findings today following the recent oversight hearing with U.S. Citizenship and Immigration Services officials. The witnesses were USCIS Chief Financial Officer Joseph Moore, Service Center Operations Associate Director Donald Neufeld, and Field Operations Associate Director Dan Renaud. Key findings document follows:

USCIS Confirmed That, Contrary To The President’s Assertions, The Administration’s Executive Amnesty Programs Provide A Pathway To Citizenship For Illegal Immigrants

USCIS admitted that an illegal immigrant who receives executive amnesty and subsequently receives “advance parole”—which allows illegal immigrants to re-enter the U.S. after traveling abroad—would be eligible to “adjust” to lawful permanent resident status (i.e., obtain a green card), and be able to apply for U.S. citizenship five years after that, as long as they meet certain criteria.

Director of Service Center Operations Donald Neufeld explained that “to apply for adjustment of [immigration] status… you have to have been inspected and admitted or paroled. And so someone who had received advance parole, departed and was paroled back then they would satisfy that requirement and be eligible if they had the… basis for adjustment… Once you have a green card, typically if you have five years of residency, then you’re eligible to apply for citizenship.”
Under current law, an illegal immigrant is barred from obtaining lawful status unless he leaves the country for a statutorily required amount of time (i.e., three or ten years). However, if, as Mr. Neufeld explained, he obtains parole, he can obtain lawful status if he has a relative or employer who will petition on his behalf for a green card—the precursor to U.S. citizenship. Mr. Renaud confirmed that such a person “would be able to adjust status in the United States if they were here on parole.”

Although the Immigration and Nationality Act (INA) restricts parole to situations involving “urgent humanitarian reasons or [a] significant public benefit,” the instructions for USCIS’s Form I-131, “Application for Travel Document,” states that advance parole may be granted for “semester abroad programs or academic research,” and “overseas assignments, interviews, conferences, training, or meetings with clients.” The USCIS witnesses agreed that the INA does not set forth these situations as grounds for parole.

In a February 13, 2015, letter to Homeland Security Secretary Jeh Johnson, House Judiciary Chairman Bob Goodlatte noted that, according to USCIS, “in the first two years of DACA implementation, over 6,400 DACA recipients requested advance parole. And out of the 4,566 cases decided by that time, only 566 had been denied. That is an advance parole grant rate of 88%.”

Immigration advocacy groups and immigration benefits law practices are fully aware of this loophole.

In a February 12, 2015, USCIS “Congressional Update and Teleconference” regarding the expanded DACA program, USCIS announced that DACA applicants will now be able to file applications for advance parole at the same time they file for DACA.

USCIS Confirmed That The Administration’s Executive Amnesty Sets A Lower Scrutiny Bar For Unlawful Aliens Than Lawful Aliens

Contrary to what USCIS publicly states about the DACA program, the USCIS witnesses stated unequivocally that USCIS charges no fee for a DACA application(Form I-821D).

Indeed, USCIS Chief Financial Officer Joseph Moore agreed with Senator Cruz that there is “not a special fee for DACA and DAPA [Deferred Action for Parents of Americans and Lawful Permanent Residents].”

The only fees paid by DACA applicants are the $85 biometrics (fingerprints and photograph) processing fee and $380 employment authorization document (EAD) fee.
In addition, in his February 26, 2015, letter to Chairman Grassley and Chairman Sessions, USCIS Director Leon Rodriguez wrote that “no fee is currently charged for a request for DACA (Form I-821D).”
Thus, no fee at all is being collected to directly recover the cost of adjudicating the DACA application.

Not only do lawful immigrants and lawful temporary workers pay both the EAD and biometrics fees, where required, but unlike DACA (and DAPA) applicants, such lawful applicants for immigration benefits must also pay an additionalfee to cover the cost of adjudicating the specific application or petition for the immigration benefit for which they are applying. For example:

Reading from USCIS’ fee schedule, Senator Cruz pointed out that an Immigrant Petition for Alien Worker (I-140) costs $580, an Immigrant Petition by Alien Entrepreneur (I-526) costs $1,500, and an application for a Regional Center under the Immigrant Investor Pilot Program (I-924) costs $6,230.
After the witnesses confirmed that DACA applicants pay no special fee for the DACA application, Senator Cruz replied: “I… cannot think of any other fee program, any rational fee program that allows those who break the law to be exempt from paying a fee. But if someone is foolish enough to actually try to comply with our immigration laws to wait at home to wait in line for years, sometimes decades, we smacked them with a fee of $1,500 or $6,200, but those who are here illegally pay nothing. That strikes me as a program that is indefensible to the American people.”
In his February 26, 2015, letter, Director Rodriguez wrote that “almost all fee paying customers are, to some extent, subsidizing the costs of services provided to those for whom a fee is not charged or is not set at a level enabling the recovery of costs incurred for services provided.”

Senator Sessions pointed out that even the “Gang of Eight bill had a $1,000 fine or penalty” for illegal immigrants applying for amnesty.

USCIS Revealed That The Administration Does Not Know The Cost Of DACA

Mr. Moore testified that USCIS does “cost accounting that allows [USCIS] to identify the actual costs associated with providing that specific service” and that USCIS “calculate[s] [its] fees based upon the level of effort [that] is required to review and process each form type.”

However, in his February 26, 2015, letter, Director Rodriguez wrote that “[t]he specific costs that USCIS is able to discretely track within its financial management system related to DACA do not include a share of USCIS overhead costs such as management and oversight, customer service, etc… [A]lmost all fee paying customers are, to some extent, subsidizing the costs of services provided to those for whom a fee is not charged or is not set at a level enabling the recovery of costs incurred for services provided.”

Mr. Moore confirmed that USCIS internal cost estimates for DAPA are between $324 and $484 million. When asked whether USCIS had considered the cost of the expanded executive amnesty to state and local governments, Mr. Moore testified that the agency “did not specifically address that issue as part of [its] planning.”

USCIS Does Not And Will Not Conduct Full Background Checks On Applicants For The Administration’s Executive Amnesty Programs

The witnesses testified that for “status granting” immigration benefits, such as “naturalization applications and adjustment of status,” USCIS conducts complete background checks.

However, for “non-status granting” benefits, such as DACA, USCIS does not conduct the same thorough background checks.

Mr. Renaud testified that “[DACA] requesters do not undergo, typically, an FBI name check” and that DAPA applicants would not undergo screening through the FBI Name Check program.
In a December 21, 2006, USCIS Interoffice Memorandum, the Associate Director for Domestic Operations wrote that the FBI Name Check program has “proven to be an effective tool in the identification of potential threats to our national security and in providing other relevant information that may affect the eligibility of an applicant for a benefit.”

Mr. Renaud agreed with Senator Sessions that participation in the “FBI fingerprint system is not mandatory, so, those fingerprint checks do not contain records from every jurisdiction,” and therefore, a USCIS background check may not reflect a DACA applicant’s actual criminal history.

Senator Sessions noted that, on March 2, 2015, The President’s Task Force on 21^st Century Policing issued an interim report, which stated that the Department of Justice “should remove civil immigration information from the FBI’s National Crime Information Center database.” When asked whether such information is helpful to USCIS, Mr. Renaud replied, “that information is important to have in the adjudication.”

USCIS Does Not Require Face-To-Face Interviews for Executive Amnesty Applicants

Mr. Renaud testified that “in a typical year, [USCIS] field operations adjust the status of over half a million individuals to permanent residence… USCIS officers in the field conduct in person interviews with these applicants in 83 offices around the country. Similarly, individuals seeking citizenship to the naturalization process must appear in person before a USCIS officer who conducts an examination of the applicant’s case and all available evidence and background security checks.”

For DACA applicants, however, Mr. Renaud testified that “typically, [USCIS] does not conduct in person interviews” and USICS has no plans to interview DAPA applicants.

Kenneth Palinkas, President of the National Citizenship and Immigration Services Council, has repeatedly attested to the importance of in-person interviews. Most recently, Mr. Palinkas supplied a Declaration in the states’ case challenging the President’s executive amnesty that “[a]n interview is one of the most important tools in an officer’s toolbox because it is one of the most effective ways to detect fraud and to identify national-security threats.”

Senator Sessions quoted Mr. Palinkas, and added that “after 9/11, Congress required in-person interviews for all visa applicants except those 14 and older or younger and older than 79, precisely because the 9/11 commission felt that national security risks that are associated with lack of in-person interviews.”

USCIS Would Not Commit To Deny Criminal Aliens’ Applications For The Administration’s Amnesty Programs

When Senator Cornyn asked the witnesses whether USCIS would commit to denying applications for deferred action for aliens with convictions for possession of child pornography, child abuse, assault, abduction, false imprisonment, voter fraud, larceny, robbery, harassment, theft, reckless driving, and distribution of alcohol to minors, none said yes.

The witnesses also would not answer whether USCIS has ever granted any applications for deferred action for aliens with such convictions.

In addition, Mr. Neufeld testified that USCIS “typically would not refer cases to ICE” if evidence indicates that an applicant committed certain crimes related to the alien’s lack of lawful status—such as the use of a Social Security number that did not belong to the alien.
USCIS Confirmed That The Agency Could Not Handle A Surge Of Executive Amnesty Applications

Mr. Neufeld testified that with its DACA amnesty program in 2012, “there [was] an initial impact when there is a surge that you can’t really prepare for.” Subsequently, Mr. Neufeld indicated that USCIS “did then begin the hiring process to acquire that additional resources that [the agency] needed to not only deal with the surge that we had experienced, but also with the backlogs that had developed by redirecting some resources.”

According to the witnesses, prior to the federal court injunction, USCIS had planned to hire up to 1,000 new employees to handle the processing of executive amnesty applications at the Crystal City facility.

Of those employees, USCIS intended to hire 400 new adjudicators. The witnesses indicated that “[t]here’s generally been two and four weeks of training, mentoring and coaching that go on and then they are considered fully trained or certified. And that was the plan that we would have implemented in the center in Crystal City.”
The witnesses admitted “that would have represented a surge in [the agency’s] training demand” compared to an average year.
Mr. Renaud testified that the agency “would have been in a better place were [it] able to use seasoned experienced adjudicators,” rather than having to rely on new hires.

The witnesses testified that the applications would be paper-based, that USCIS would accept copies of documents to determine whether an applicant met the requirements for the amnesty programs, and that the agency will ask for original documents only if there are questions about the authenticity of the documents.

According to the witnesses, in some situations, USCIS will accept an affidavit to support information pertaining to that applicant’s time in the U.S., with Mr. Neufeld indicating that an “affidavit would be accepted to explain a reason for a departure within the time period in which [the alien is] required to have continuous physical presence.”
Mr. Renaud conceded, however, that USCIS generally does not have the resources to independently investigate the claims made in the paper-based applications.

The witnesses claimed that the agency could still root out fraud in amnesty applications through use of its individual adjudicators’ training and experience—even though those adjudicators would be new employees with minimal training and experience.

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