Representative Lofgren, Representative Farr, and distinguished members of US Senate and House of Representatives, thank you for this opportunity to testify on the performance of the INS District Offices in Northern California and the California Service Center. I am a partner in the firm of Berry, Appleman & Leiden LLP with offices in San Francisco and San Jose (on March 6), and I serve as a member of the Board of Governors of the American Immigration Lawyers Association.

Immigration attorneys in Northern California represent tens of thousands of American families, asylum seekers, US employers and foreign national employees to obtain and preserve lawful immigration status in the United States. Although many of us work with INS offices across the U.S., the majority of our work is with the San Francisco and San Jose district offices and the California Service Center.

INS District Offices The district offices are primarily used for activities relating to family based immigration, asylum, and work authorization documentation, in addition to their investigations and enforcement responsibilities. While both the district offices are completing many family based cases and issuing employment authorization documents and travel permits ("advance parole"), the delay factor has become significant and has exacerbated applicants' and petitioners' uncertainty and anxiety.

Family Immigration Adjudications Delays In the typical family-based immigration case, such as a individual petitioning for green card status for his or her spouse, the application is filed with the district office in person or by mail (with filing fees of over $400 per person). The district office sends a receipt, but the applicant does not hear from the office again until the "fingerprint notice" is sent. In San Francisco, the fingerprint notice is sent about 6-9 months after the initial filing; in San Jose, the wait is about 12 or more months. Next, about 16-18 months after the filing in San Francisco and 24 or more months in San Jose, the applicant receives a notice to appear for an interview at a specific time, usually about 2-3 weeks later.

Need for Reliable Information and Inquiry System The difficulty of these long waits, which are followed by very short notice of the interview, is compounded the absence of a routine, reliable information and inquiry system. Applicants are never sure if their application is still in process or lost, particularly when the expected time for a fingerprint or interview notice comes and goes. During the lengthy wait, many applicants change their residences, but there is no reliable way to confirm that the INS has recorded and will use the new address. Similarly, when an applicant moves here from the jurisdiction of another INS district office and the file is supposed to have been transferred, there is not a reliable way to confirm that the transfer has been accomplished.

The current method for obtaining information and making inquiries is to send a letter by mail or to go to the district office and wait in the general information line to speak with an officer. Unfortunately, many inquiry letters simply do not receive a response. Taking a day off work to wait two or three hours in the general information line seems to be a more reliable alternative, but even then it is not uncommon for the applicant to be told that they will have to send a letter. It appears to the public that there is not a working system for handling inquiries, which leads many families to contact their Congressional representative, simply to obtain information about an interview, a file transfer, or an address change.

Solution: The need for a reliable "customer" information and inquiry system is shared by almost all service organizations, whether in business or in government. The most common modern solution is to establish a database that can be accessed by the likely customers to submit or obtain needed information. Many organizations use telephone-based systems, although Internet access systems will increasingly be the better solution. With an ID and other identifiers, many if not most applicants (or their representatives) could call or log-in to transact their business through an automated system, leaving the officers to handle more difficult work. In the meantime, a triaged inquiry system could be established with different PO boxes or systems for specific issues (address change, confirm file transfer, confirm or reschedule interview times), so that a high volume of responses could be produced with efficiency.

The San Diego district office is receiving some inquiries by e-mail, and their response record is good. E-mail removes the physical labor of transporting, opening, sorting, scanning, and storing hard copy mail, and allows offices to save and respond to inquiries as the information is located.

Obviously, the information and inquiry problems would be greatly reduced if the processing times could be reduced from the current multiple years wait. Having paid such high fees, well over $2000 for a family of four, immigration applicants and their American families deserve prompt service.

District Office Employment Authorization and Travel Permission There is an emerging problem at the district offices concerning the receipt of Employment Authorization Documents (EADs) and travel permission "Advance Parole." Family based immigrants, asylum applicants, and some employment based immigrants need to obtain an EAD and advance parole during the approval process. Current policy requires that these documents be provided in person only, which involves going to the district office.

At present, the procedure is to go to the cashier, "fee-in" the EAD or advance parole request, and then go to the EAD window for service. (EADs are produced in about two or more hours). However, it is now our understanding that a new procedure will or has been implemented that will require a much longer process and more officer time. The new procedure will require that applicants for EADs and advance parole first wait in the General Information line (usually about 1-2 hours to reach an officer) for the sole purpose of then being directed to the cashier to complete the process as usual.

Solution: The district offices should be looking to reduce the involvement of officers and waiting points in the process, and any new procedure that could require an additional 1-2 hour wait should be reversed. Moreover, the INS should consider whether more of the EAD and advance parole transactions couldn't be done by mail or through the service centers. Although the processing time is about 90 days or more, most employment-based immigration applicants obtain their EADs by mail from the INS service centers.

INS California Service Center
Although the California Service Center also completes a high volume of cases, the most serious problem is the increasing time delay in reviewing and adjudicating cases.

Adjudications Delays
The adjudication time for H-1B specialty occupation petitions, which must be approved before the highly-skilled nonimmigrant can begin work, is now routinely taking about 90 days from filing, whether the foreign national is new to the program or is already in valid H-1B status with another employer. Unfortunately, for years the CSC has lagged behind the other service centers, which have been able to adjudicate the same petitions in less than a month. And now, in order to maintain uniformity between the service centers in the face of the allegedly impending H-1B cap, the other three service centers have had to be slowed to the speed of the CSC, so that all service centers are now taking about 90 days to approve H-1B petitions.

Those of us who are familiar with the time frames of Silicon Valley start-ups and high-tech product cycles know that 90 days can be an eternity in the success of a new venture.

On the green card side, employment-based immigrant (I-140) petitions have now come to take 12 months or more for adjudication. For many applicants, this brings them close to the final expiration of time on their nonimmigrant visas, if they are not forced to leave the U.S. In the last year we have seen scores of highly skilled professionals and their families forced to leave the U.S. simply because their I-140 immigrant petitions had gone un-adjudicated. And, although not forcing departure from the U.S, the growing adjudication delay for approval of the final adjustment of status (green card) application is now approaching two years or longer.

Solution: INS Headquarters needs to give high priority to reducing adjudication times. Adjudication activities are paid for entirely by applicants' fees, so increases in numbers of applications should be providing INS with significant economies of scale and greatly increased receipts. INS must be encouraged to adopt a strategic systems approach to adjudications.

Congress and the Administration also need to cooperate by allowing the INS to operate its fee-based programs as any dynamic service organization would – anticipating revenues and moving resources quickly to meet increased demand. We must question the value of requiring fee-based receipts to be appropriated and of requiring the reprogramming process for additional receipts if INS is going to be given the chance to succeed.

In the meantime, INS can make a number of policy changes that would reduce the adverse impact of the current delays. On the nonimmigrant side, INS could consider recognizing or pre-certifying the eligibility of certain employer-petitioners after a set number of approvals or special pre-certification and permit their prospective employees to go directly to the visa stage, rather than re-adjudicating the same employer's eligibility multiple times. This is a sensitive subject that requires attention to fairness while the H-1B cap remains so low that visas will run out during the year, but a similar approach has worked very successfully for the intracompany transferee ("blanket L") program. Congress could also consider a statutory change that would permit nonimmigrants to switch employers upon the filing of the petition by the new employer.

On the "green card" side, applicants should be permitted to file their adjustment applications concurrently with their I-140 petitions, and should be permitted to obtain employment authorization and travel permission shortly after filing the application. This would remove the harm and hardship now caused by the lengthy I-140 petition adjudication delay and would give the INS some breathing space to take the measures necessary to reduce adjudication times on a strategic and systematic basis.

Inquiries and Requests for Evidence by E-mail
It is difficult to make inquiries to the CSC regarding cases that appear overdue. There is cumbersome system of multiple fax inquiries that seldom results in a prompt response. Volunteer liaison contacts handle an enormous number of inquiries that are not answered by the fax inquiry system. And the one call-in ombudsman number typically requires auto redialing for hours in order to have a chance to speak with an officer. Needless to say, the officers are quite harried and may not have ready access to the information needed.

On the other hand, adjudicating officers sometimes need additional information or clarification from a petitioner, and the current system requires the sending and receipt of "hard copy" mail, often to just get a reply to a simple question. More over, although the CSC does periodically publish a report of the filing date of cases it is currently working on, it is very difficult for petitioners and their representatives to really know where a case is in the process and whether it is overdue or lost.

Solution: The CSC needs to consider the use of e-mail to supplement its existing response media. Permitting targeted e-mail inquiries would greatly reduce paper handling, requires no return posting or clerical work, and inquiries and responses can be indexed, saved, sorted, and searched. In addition, INS needs to consider using e-mail as a vehicle for some or many requests for evidence or other contacts with petitioners and representatives, where a response is needed to complete the adjudication. Soon, the INS must consider establishing an on-line database of case adjudication information that would allow petitioners to know that their petition is in the proper queue and the approximate time until adjudication. The CSC has a rudimentary telephone system that provides information of pending and adjudicated cases, which is a good system to build on. Petitioners and applicants would be greatly relieved if they could know where their cases stood in the queue on any given day.

Vision for the Future of INS Adjudications
Of course, it is important to look beyond the current crises and adopt a vision for the future in order to map out a strategic path to follow. It seems clear to us that the real future for INS adjudications is to employ electronic and on-line filing, at least as an alternative to current "hard copy mail-in" system. Particularly in the employment-based immigration area, employers' attorneys already have all relevant information in electronic form. The information is poured or pasted into a hard-copy government forms, sent to the company for signature, returned to the attorneys for photocopying and mailed to the INS. The INS re-keys some of the information into the INS system, but officers or contractors have to transport, open, sort, review, and store all the hard copy. Anyone who has been to an INS service center knows that it most closely resembles a warehouse for paper.

Those attorneys who already maintain and rely on extensive databases of information in electronic computer formats are eager to participate in pilot programs that will permit electronic filing and adjudication of immigration petitions and applications. We are creating our own systems with this in mind, because we expect that electronic filing will be the future of immigration adjudications. It is likely that electronic filing will be of greatest interest in the employment-based immigration area, where computer use has become ubiquitous in many industries, but it can also be utilized in family and asylum cases.

At the same time, electronic filing systems would easily permit on-line status information, which should greatly reduce the number of Congressional and other inquiries. Most on-line businesses now utilize Web enabled databases that allow customers to check on orders and itineraries, and to request help and advice. Security systems for high volume retail and service organizations have already been developed that would permit the highest standards of security while promoting ease of use on multiple platforms. This is the future that many of us in Northern California already experience in our daily work and personal lives, and the INS deserves this bright a future as well.

Consistency with National INS Legal Policies and Interpretations
A final concern shared by many practitioners who file with the INS CSC is an emerging trend at the CSC of breaking new legal and policy ground through novel interpretations of the statutory law and regulations that are contrary to or deviate from national INS policy and well-settled law. Unfortunately, there does not appear to be a national coordinating mechanism in INS to direct compliance by the CSC with national policy and legal interpretations, nor to explore or consider deviations from national policy and well-settled law.

Exacerbating this problem is the absence of a communications mechanism by which the CSC can provide notice and warning to petitioners that it intends to employ novel interpretations or deviate from national policy and well-settled law. Without such notice, petitioners will continue to follow national INS policy and legal precedent, only to receive petition denials from the CSC based on novel but unpublished interpretations.

For instance, just in the past year, some adjudications at the CSC have begun to deny H-1B status to professionals in occupations long held to qualify as "specialty occupations." Included among the occupations that CSC decisions have denied or revoked H-1B status for are: graphic designers (for the computer software and Web applications); technical writers (of software and Web content, instructions, and help functions); and high-level market research analysts with MBAs (Masters of Business Administration). Similar H-1B petitions for these same occupations have been approved for years at the CSC and continue to be approved by the other regional service centers, and there has not been any change in the statute, regulations, or operating instructions of the INS. However, the CSC appears to have adopted the position that these occupations are no longer "specialty occupations" that qualify for H-1B classification.

On the "green card" side, the CSC has adopted a position that jobs that require professionals with an advanced degree or equivalent should not be eligible for the preferred employment-based immigrant category (EB2) for "members of the professions holding advance degrees or their equivalent," if the employer refers to the nature of the equivalent in the preliminary labor certification process. This novel CSC policy has resulted in the denial of hundreds of immigrant petitions, forcing some highly skilled engineers to leave the U.S. There is yet no internal INS mechanism to bring the CSC policy in line with national INS policy and with the adjudications of the other three regional service centers.

Petitioners do have the right to appeal denials by a service center to the INS Administrative Appeals Office, but most appeals languish at the AAO for 18 months or more without decision. In the meantime, petitioners who file in the CSC do not know what the correct policy is and how to comply with it so that their petitions will be approved. Inaction by the INS Headquarters inevitably leads to litigation, which becomes the only resort for petitioners who have followed national policy but received denials from the CSC.

Solution: INS Headquarters needs to work more closely with the CSC and the public to ensure that national INS policy and legal precedent is understood and followed. In some cases this may require Headquarters to direct or order the CSC to desist from applying a novel interpretation and to reverse any non-complying decisions until a proper policy process has been undertaken. At the same time, INS Headquarters needs to establish a process by which individual examiners and entities such as the CSC can raise and have considered new or novel interpretations of the Act and regulations. Of course, the Administrative Procedure Act governs the required public notice and comment activities that would inform the public of changed policies and regulations.

Conclusion
As you know, there are many dedicated professionals serving at all levels of the INS, and they deserve the best resources, systems, and leadership that we can give them. For a variety of reasons, adjudications at the INS San Francisco and San Jose district offices and the California Service Center have become significantly delayed, and the INS information systems have just not been able to keep pace.

It would be understood if the officers and leaders of the INS were tempted to simply give up or adopted a defensive "bunker" attitude toward the public, under the current circumstances. But with the support of California Congressional delegation and the cooperation of the public, the present time is an excellent opportunity to begin the turn-around of the adjudications function at the INS.

By increasingly employing modern information technology, the INS can build on its current systems to achieve high quality customer service, delivered in a prompt fashion. In the meantime, INS Headquarters can help the California offices to adopt a number of measures that relieve the harshest consequences of the current situation and introduce some more efficient processes while better systems are being developed.

Thank you again for this opportunity to testify. I would welcome any questions that the members of the panel may have.

Statement of Congresswoman Zoe Lofgren

Statement of Rep. Anna Eshoo

Statement of Jennifer Dineen-Ocon

Statement of Linus Torvalds

Statement of Jim Beall

Statement of Warren Leiden

Statement of Sunil Vatave

Statement of Deborah Kessler

Statement of Sister Marilyn Lacey

Statement of Heidi Wilson

Statement of John Barey

Statement of Jacob and Yetta Bromley

Statement of Debra Jaramillo-Coker

Statement of George Windsor Jones

Statement of Le Kim Ngo