THE NEW YORK IMMIGRATION COALITION

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1 A PERFECT STORM: IMMIGRATION SERVICE FUNCTIONS LIKELY TO COLLAPSE AS STAFFING, FUNDING, COORDINATION AND TECHNOLOGY PROBLEMS COLLIDE UNDER THE DEPARTMENT OF HOMELAND SECURITY Produced by THE NEW YORK IMMIGRATION COALITION December 17, 2002

2 A PERFECT STORM: IMMIGRATION SERVICE FUNCTIONS LIKELY TO COLLAPSE AS STAFFING, FUNDING, COORDINATION AND TECHNOLOGY PROBLEMS COLLIDE UNDER THE DEPARTMENT OF HOMELAND SECURITY The New York Immigration Coalition wishes to acknowledge Policy and Training Associate Norman Eng, Esq., primary author of this report, for his incisive thinking and unflagging energy during the research, drafting and editing stages of this project. Thanks also to Karin Anderson, Esq., and Ana Maria Bazan, Esq., both NYIC Policy and Training Associates: to Karin for research and writing assistance, and to Ana Maria for assistance with research and identification of the individuals whose stories of their experiences with INS processing systems are included in this report. Finally, special thanks to Patrick Young, Esq., Chairperson of the NYIC s Board of Directors and author of the concept paper upon which this report is based.

3 TABLE OF CONTENTS EXECUTIVE SUMMARY 1 Recommendations 4 I. INTRODUCTION 6 II. LESSONS FROM THE PAST: NATURALIZATION, ADJUSTMENT OF STATUS, 7 AND REFUGEE AND ASYLEE PROCESSING A. The Naturalization Program 7 B. Adjustment of Status 11 C. Asylum and Refugee Processing Slowed to Historic Lows 14 III. FACTORS LIKELY TO INCREASE BACKLOGS AND DELAYS 16 A. Staff Shortages Create More Backlogs 16 B. Services Won t Improve Without Commitment to Increased Funding & Resources 19 C. Administrative Confusion + Lack of Coordination = More Delays 21 D. New Procedures and Systems Should Add Quality, Not Delays, to Adjudications 24 IV. IMPACT ON PEOPLE S LIVES 27 A. Lives on Hold Due to Naturalization Backlog 27 B. Lives on Hold Due to Adjustment Backlog 28 V. CONCLUSION 29 ii

4 EXECUTIVE SUMMARY On November 25, 2002, President George W. Bush signed into law the Homeland Security Act, a massive government reorganization plan which, among other changes, abolishes the Immigration and Naturalization Service (INS) and transfers all immigration functions to the new Department of Homeland Security (DHS). The incorporation of the INS into the mammoth new department will have grave and far-reaching consequences for immigrants, their families, and the quality of U.S. immigration services. Like all Americans, immigrants want the U.S. government to take steps to prevent future terrorist attacks, but they fear that placing immigration services in a department explicitly created for internal security will jeopardize the immigration agency s historical mission of uniting families, admitting talented workers, and protecting the persecuted. The Homeland Security Act was pushed through Congress by the Bush Administration with little debate and deliberation, particularly with respect to the immigration-related provisions contained in the 475-page bill. The new law dismantles the INS, forcing the most dramatic changes in the structure and function of U.S. immigration services since the creation of the INS nearly 70 years ago. The gargantuan new DHS will employ more than 170,000 workers and merge 22 diverse agencies, including the INS, the Customs Service, FEMA, and the Coast Guard. The law splits up the thousands of systems and the 34,000 employees of the INS, placing immigration enforcement functions (border patrol, detention and removal, intelligence, investigations and inspections) within DHS s largest division Border and Transportation Security while placing immigration services (immigrant visa petitions, naturalization applications, asylum and refugee applications, and service center adjudications) in the Bureau of Citizenship and Immigration Services. This report explores the federal government s record in recent years with regard to reforms of INS processes, current problems with immigration application processing, and several of the factors most likely to result in unprecedented new backlogs and systems failures as immigration functions are transferred to the DHS. Learning from Recent Reform Efforts and Current INS Problems Over the past decade, INS has had tremendous difficulty implementing administrative changes of far lesser magnitude than those that will occur with the incorporation of immigration functions into the new DHS. Given this troubled record, the fracturing of immigration functions across the hierarchy and systems of the new agency provides numerous opportunities for breakdowns in application processing. Naturalization applications and adjustment-of-status applications are among the types of adjudications that are likely to grind to a halt with the transfer to DHS. Naturalization. In 1996, new processing requirements for the naturalization program were implemented, including the requirement that INS open and operate more than 100 new fingerprinting sites. By the following year, adjudications had dropped by nearly half, from 1.3 million in 1996 to 700,000 in 1997, and down to 600,000 in Naturalization backlogs grew from 700,000 in 1995 to 1.8 million in Delays in naturalization endured despite massive efforts to modernize the program and a hefty application fee increase. 1

5 Adjustment of Status. As INS diverted resources to cope with the swelling naturalization backlog, the adjustment backlog grew, from 120,000 cases in 1994 to more than 1 million in In 2000, an INS study revealed that 25% of adjustment applicants overall, 48% of adjustment applicants in New York, and 39% in Los Angeles were waiting at least 24 months for their cases to be adjudicated. The backlog of family-based petitions has increased from about 200,000 in 1994 to approximately 700,000 in Asylum and Refugee Processing. Even before 9/11, INS had demonstrated an inability to cope with even relatively minor changes in the asylum processing system. Asylum reform in 1990 resulted in a nearly 500% increase in backlogs over a five-year period (from 97,000 in 1990 to 464,000 by 1995), due to a shortage of funding and staffing at the agency. Since 9/11, the INS has nearly shut down refugee processing, even though refugees represent one of the most thoroughly-vetted immigrant streams. Backlogs and Processing Delays Likely to Swell Under DHS Structure While it is not possible to make definitive projections, it is highly likely that hundreds of thousands, if not millions, of immigration cases will become backlogged under the new agency. American employers and families who have petitioned for immigrants to join them now face a perfect storm scenario. Several factors, each of which on its own could result in delays of many months or years for hundreds of thousands of cases, now threaten to collide under the new agency and cause breakdowns in a variety of application processing systems that could affect millions of cases. Acute Staffing Shortages Expected. INS s adjudications programs were facing serious staffing problems long before the transfer to DHS, due to the lack of permanent job titles, lower pay compared to jobs on the enforcement side of the agency, and lengthy waiting periods for processing of new hires. The agency increasingly relied on temporary and contract staff through the 1990s, so much so that almost 50% of INS s total adjudications workforce now consists of temporary and contract staff. Attrition rates for these staff are more than double that of permanent staff working in the same districts. The hemorrhaging of experienced staff has increased over time, as large numbers have left for more attractive positions at other government agencies. In 2002, for example, the INS has seen a 500% increase in the loss of immigration inspectors and other employees to other agencies such as the Transportation Security Administration. Even more alarming are recent statistics from the Partnership for Public Service which show that roughly one quarter of INS employees will be eligible to retire by Thus, the INS is limping into the high-stakes DHS transition period with thousands of positions unfilled, roughly 50% of its adjudications workforce temporary or contract workers, and one quarter of its employees on the verge of retirement. This fragmented and demoralized workforce is expected to adjudicate more than 10 million applications per year in a mammoth new agency where its work will be the lowest institutional priority. Given these factors, ballooning backlogs and systems paralysis are a virtual certainty. Insufficient Funding A Present and Future Reality. Historically, INS services have been severely under-funded, with priority usually given to Border Patrol and enforcement 2

6 activities. While INS s budget has more than tripled since FY 1992, from 1.4 billion to 4.8 billion in FY 2001, almost all of that increase has been for enforcement and border initiatives; INS s enforcement budget was more than five times that for adjudications and naturalization in Services likely will be even more marginalized in the new security-focused organization. In an attempt to address the escalating backlog of adjustment cases, INS s Immigration Services Division (ISD) submitted a reprogramming request for 534 new positions, including more than 300 permanent positions, for FY Despite repeated promises from the Bush Administration and Congress that immigration adjudications and backlog reduction would remain a high priority under the new DHS structure, the ISD was unable to win support for its request. With zero of these positions approved, ISD estimates that backlog elimination efforts will be set back a minimum of one year. Surely, the bargaining power of the Bureau of Citizenship and Immigration Services will be even weaker under DHS, where it will compete for funding with numerous enforcement agencies such as the Customs Service, the Coast Guard, and the Secret Service. Backlogs can only be expected to increase under this scenario. Administrative Confusion and Lack of Coordination Mean Chaos for Millions of Applicants. Building the DHS entails the merger of 22 federal agencies, the largest reorganization of the federal government in 50 years. While the reorganization process will be difficult for all agencies involved, the INS is the only one among them that must continue to receive and process more than 10 million applications and petitions filed annually by individuals and U.S. businesses for a wide variety of immigration-related benefits. INS has cited inadequate automation as the number one factor affecting its ability to process applications in a timely manner. Its existing inadequacies in information technology will be magnified by the flood of new information sharing demands that will result from and are a major rationale for the DHS merger. Systems breakdowns that may occur in this environment will have calamitous results for hundreds of thousands of INS applicants and will be far more difficult to resolve given the administrative confusion and lack of coordination that will undoubtedly characterize the early years of DHS. The likelihood of significant systems failure is great, especially when viewed in light of performance data on organizational mergers. In the short term, many private-sector mergers actually result in a 50% decline in productivity and effectiveness in the first four to eight months following the merger. A 50% decline in productivity in the adjustment and naturalization program, even for just six months, could be devastating in terms of backlog growth. Based on 2002 figures, a 50% decline in adjudications productivity for six months would mean more than 155,000 additional backlogged naturalization cases and more that 240,000 additional adjustment-of-status applications piled onto a backlog that stood just under one million cases in FY New Procedures and Systems Should Add Quality, Not Delays, to Adjudications Processes. New procedures and systems are already generating new backlogs, without necessarily achieving any gains in security or quality of adjudications. Like all Americans, immigrants want the U.S. government to take steps to prevent future terrorist attacks and would welcome security measures that are effective and fair. However, many of the post-9/11 procedures intended to increase security have been dull-edged measures 3

7 that place heavy burdens on fragile immigration procedures while adding little to the country s security. For example, the institution of one additional security check already has added seven months to adjustment processing time, largely because the new requirement was mandated before service centers and districts were properly trained or equipped to carry out the new procedure. The July 2002 INS requirement that all noncitizens submit change of address forms resulted in a 700,000-form backlog within 60 days. Clumsy implementation of such measures unnecessarily burdens immigration functions at a time when the agency should be focusing its limited resources on processes that add both quality and security to its adjudications. Recommendations In his 2000 presidential campaign, George W. Bush promised Latino and immigrant voters that immigration paperwork processing would be reduced to six months under his watch. With the passage of the Homeland Security Act, President Bush s campaign pledge appears all but forgotten. In the past year, immigrants already have gotten a bitter taste of what is in store for immigration services in the new enforcement-minded era a virtual freeze in adjudications, the denial of funding for increased resources to compensate for security check delays, and an adjustment backlog that has hovered at the one million mark for close to four years. It is becoming increasing clear that escalating backlogs and dysfunctions in service provision will remain the norm. Far from having achieved a six-month timeframe for adjudications, processing times for many applications are already four times that timeframe, and it is not farfetched to anticipate scenarios in which processing times may even take ten times as long as President Bush had promised. Based on the foregoing, The New York Immigration Coalition calls on President Bush and Congress to adopt the following recommendations: The new immigration services agency should take all necessary measures, including the hiring of additional staff and the implementation of automated procedures, to eliminate backlogs and reduce processing time of all immigration applications to six months, as promised by President Bush during his 2000 presidential campaign. Immigration services must not be marginalized in the Department of Homeland Security. Although enforcement will be an important responsibility, equal emphasis must be placed on improving services including more expeditious processing of naturalization and immigration benefits applications, as well as the timely admission of immigrants, refugees and visitors to the United States. Adequate planning, funding and staffing are vital if the new immigration agency is to meet its new mandates and continue with its current work. Resources for adjudications must not be diminished in order to augment enforcement coffers. Chronic staffing shortages in the adjudications and naturalization program must be addressed. The immigration services bureau should expedite the hiring of permanent adjudications officers and support staff, using incentives such as better pay equaling that of Border Patrol agents and immigration inspectors, whose starting salaries are often 4

8 higher. Steps must be taken to reduce attrition and to encourage development of career officers. The services bureau must expedite the development of an integrated case management system and other automated systems that effectively improve applications processing, can handle numerous types of immigration applications, and provide better feedback and tracking of applications processing issues. Congress should increase the level of direct appropriations for the immigration services bureau, supplementing funds derived from application fees. Direct appropriations are necessary to cover the cost of badly-needed information technology improvements and increased staffing levels, which are critical to reducing backlogs in all types of applications. Funds derived from application fees must not be diverted to non-servicerelated functions. There must be no new fees to pay for IBIS checks or other new measures fees already were increased recently, and the high cost is placing immigration services beyond the reach of many families. INS s transition to DHS must be properly and carefully planned and executed, in order to minimize the administrative chaos and confusion that threaten to grind applications processing to a standstill, creating huge new backlogs and undoing years of hard-won gains. The implementation of the new immigration bureaus must be guided by officials who are expert in immigration policy, who understand the needs of the services function, and who can ensure the necessary coordination of the separate but interdependent services and enforcement functions. Whatever the ultimate committee structure, the Congressional oversight committee with jurisdiction over the immigration services bureau must include members who understand immigration services issues and are committed to improving services for the millions of families, individuals, and U.S. businesses who are at the mercy of the immigration application processing system. 5

9 I. INTRODUCTION Incorporation of the Immigration and Naturalization Service (INS) into the new Department of Homeland Security (DHS) will have far-reaching consequences for immigrants, their families, and the quality of immigration services. The reorganization effectuates the most dramatic changes in the structure and function of the immigration service since 1933, 1 creating a gargantuan new department that will employ more than 170,000 workers and merge 22 existing agencies of disparate function and character. The new DHS includes the INS, the Customs Service, FEMA, the Coast Guard, the Secret Service, and the newly created Transportation Security Administration. DHS is the federal bureaucracy s third-largest department, behind only the Defense Department and the Department of Veterans Affairs. The old INS is abolished. In its place are two separate agencies, with two separate chains of command, within the DHS. Immigration enforcement functions (border patrol, detention and removal, intelligence, investigations and inspections) are located within the department s largest division, Border and Transportation Security. Immigration services (immigrant visa petitions, naturalization applications, asylum and refugee applications, and service center adjudications) are located in the Bureau of Citizenship and Immigration Services. Notably absent from the reorganization are the two agencies that arguably figure most prominently in the anti-terrorism effort the FBI and the CIA. This report examines several of the more serious application processing problems that arose in the past decade, as well as measures that were taken in response to them, in order to underscore patterns and parallels with the challenges facing the DHS reorganization effort. The report also looks at the state of backlogs and application processing challenges for several key application areas to provide a baseline reading of the current system s ills, even before the problems predicted for application processing under the new structure have a chance to cause further breakdowns. Then, the report explores the several factors most likely to collide in a perfect storm scenario to cause unprecedented delays and backlogs in application processing for American employers and families seeking to sponsor immigrants under the new DHS structure. Without vigorous and sustained support and oversight from the Bush Administration and Congress, the perfect storm scenario laid out in this report of backlogged cases, a depleted and demoralized workforce, insufficient funds, and collapsed communication and coordination of case processing will quickly become a reality. 1 Executive Order 6166 of June 10, 1933 united two existing bureaus into one agency, the Immigration and Naturalization Service. 6

10 II. LESSONS FROM THE PAST: NATURALIZATION, ADJUSTMENT-OF-STATUS, AND REFUGEE AND ASYLEE PROCESSING A review of INS s troubled history of dealing with administrative change indicates that the transfer of immigration functions to the Department of Homeland Security (DHS) will likely result in a complete collapse of application processing, with far-reaching consequences for families, employers, and the persecuted. Relatively minor changes in the handling of naturalization, adjustment and asylum applications have created serious increases in backlogs and processing delays. Insufficient staffing and funding, as well as outdated information technology systems, have resulted in lengthy application processing backlogs that are now a permanent feature of the agency. The new DHS has only a proposed pilot program to eliminate backlogs. How this vague and limited mandate can possibly translate to concrete solutions for existing backlogs, let alone those that will inevitably result from the agency transfer, is a source of profound anxiety for U.S. businesses and families whose applications hang in the balance. The difficulties faced by three groups of people, those applying for naturalization, adjustment of status, and asylee and refugee status, illustrate the scope of the problem. A. The Naturalization Program Each year, hundreds of thousands of lawful permanent residents apply for U.S. citizenship, submitting a naturalization application generally after having resided in the United States for five years. Among the numerous requirements, applicants must pass an exam on U.S. history and civics and demonstrate an understanding of the English language. The process culminates with the taking of the oath of allegiance, by which one promises to serve the United States when called upon to do so. Unfortunately, many lawful permanent residents who aspire to full participation in American democracy must wait for years to complete their naturalization because of lengthy processing delays. The recent history of the naturalization program illustrates how poor planning and coordination, insufficient staffing and funding, inadequate technology, and new procedural mandates, can result in the complete paralysis of an essential immigration service system. Yet, it also demonstrates that improvements in service are achievable with a sustained commitment of resources and effective use of technology. As the responsibility for processing dozens of kinds of immigration applications shifts to DHS, however, it is becoming increasingly clear that the vast majority of resources will be committed to enforcement, with only the residual scraps tossed to the services side. Based on the lessons learned from the naturalization program, DHS s lack of commitment to immigration services is a recipe for applications processing disaster. 7

11 Failure to Anticipate Increased Demand for Naturalization The problems of the naturalization program did not develop overnight. The circumstances leading up to the naturalization backlog crisis came into play years before, but INS failed to foresee their combined impact. The INS s antiquated naturalization system began to face problems in 1992, when the numbers of applicants began increasing. Applications continued to increase for several reasons: lawful permanent residents who had obtained status through the Immigration Reform and Control Act of 1986 had become eligible to naturalize by February 1995; new requirements that lawful permanent residents replace their green cards prompted many to apply to naturalize; and anti-immigrant policy proposals also provided an incentive to naturalize. 2 By 1995, the naturalization backlog had increased to over 700,000 cases. 3 Poor Communication and Coordination Doom an Otherwise Successful CUSA Program In response, INS re-engineered the naturalization process, instituting a special initiative known as Citizenship USA (CUSA) to resolve the backlog problem. CUSA mandated that naturalization applications be adjudicated within six months, and INS met the processing deadline. In FY 1996, INS adjudicated a record 1.3 million naturalization applications. CUSA, however, was tarnished by problems arising from outdated processing procedures and lack of interagency communication and coordination in particular, misplaced reliance on the FBI to perform criminal record checks on naturalization applicants in a timely fashion. Existing policy provided that the FBI would notify the INS within 60 days if a criminal record check revealed a problem that could render the applicant ineligible to naturalize. When the FBI did not respond within 60 days, the INS was to presume that the applicant had no criminal record and granted citizenship if all other eligibility requirements were satisfied. 4 During the CUSA program, however, the FBI did not inform INS that it was not meeting the 60-day deadline. INS moved forward processing cases, unaware that the FBI was not keeping up with records checks. As a result of this processing error, 369 applicants out of 1,049,867 applicants were improperly granted citizenship. 5 Enforcement Backlash: New Procedures Mandated While Funding Withheld The lapses generated a firestorm of controversy, and INS had to re-engineer the naturalization program a second time to assure Congress and the public of the integrity of the naturalization program. In December 1996, the INS instituted new quality control procedures and ordered an outside audit of the naturalization process. Still concerned about the integrity of the system, INS added yet another layer of review to the required processing steps in April At the same 2 U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, at Citizenship Now Collaborative, Democracy on Hold: How the Citizenship Process Is Failing Immigrants and Our Nation, March 1998, p. i. 4 Statement of INS Commissioner Doris Meissner, before the United States House of Representatives Committee on Governmental Reform and Oversight, Subcommittee on National Security, International Affairs and Criminal Justice, and Committee on the Judiciary, Subcommittee on Immigration and Claims, March 5, National Immigration Forum, The Naturalization Process Needs More Efficiency, Not More Restrictions, Fact Sheet, June 9,

12 time, staff and financial resources faced unprecedented strain. From February to May 1997, four different Congressional committees held hearings, requiring the INS to expend substantial resources in preparing written testimony and appearing at the hearings. In April 1997, the Justice Department began its own investigation, paid for out of the application fee account. Around the same time, Congress responded by repeatedly delaying approval for INS to spend money already paid into its fee account, squeezing INS resources at a time when they most needed to be expanded. Despite the plethora of multiple new checks and verifications, no new staff could be hired. 6 Naturalization processing ground to a halt. While 1.3 million cases were adjudicated in 1996, adjudications dropped nearly in half to 0.7 million in FY 1997 and fell even further to 0.6 million in FY 1998 (see table 1). The backlog shot back up, from 684,000 in 1996 to 1.4 million in FY 1997 and 1.8 million in FY Almost two million prospective citizens taxpayers innocent of any wrongdoing were caught in backlog limbo through no fault of their own. Delays in naturalization processing endured, despite efforts to modernize the program and a hefty application fee increase from $95 to $225, with an additional $25 fingerprinting fee evidence of the persistent problems that can accrue from even temporary disruptions in applications processing. In 2000, an INS study found that 41% of naturalization applications overall, 92% of naturalization applicants in New York and 59% in Los Angeles were waiting at least 21 months for their cases to be adjudicated. 8 Many immigrants in New York found their applications for naturalization, which had formerly been processed in a matter of months, now took two to four years to adjudicate. 6 Citizenship Now Collaborative, Democracy on Hold: How the Citizenship Process Is Failing Immigrants and Our Nation, March 1998, pp. 5, 8; National Immigration Forum, Democracy on Hold: Executive Summary, Fact Sheet, April 9, 1998; National Immigration Forum, The Naturalization Process Needs More Efficiency, Not More Restrictions, Fact Sheet, June 9, 1998; Board Approves Effort to Speed Up Citizenship Application Process, Metropolitan News-Enterprise, Capitol News Service, August 20, 1997; Statement of INS Commissioner Doris Meissner, before the United States House of Representatives Committee on Governmental Reform and Oversight, Subcommittee on National Security, International Affairs and Criminal Justice, and Committee on the Judiciary, Subcommittee on Immigration and Claims, March 5, U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, pp U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p

13 Table 1: Naturalization Data 9 NATZ Cased Received Cases Adjudicate d Backlog Officer workyears natz adjudication INS est. processing times months 1993 * * 215,000 * * * , , , * 41% , , , * 55% ,277,000 1,334, , % ,413, ,000 1,440, % , ,000 1,803, % ,000 1,252,000 1,356, % ,000 1,298, , % , , ,750 * 9 47% , , ,304 * 10 47% * data not available Backlog as % of natz caseload Renewed Commitment to Naturalization: Increased Staffing and Automation Reduce Backlog After serious declines in the number of cases adjudicated in FY 1997 and FY 1998, the naturalization program was in need of serious attention and resources to tackle the record-high backlog. Congress finally approved $221 million to modernize the naturalization system. More staff were assigned to naturalization processing and the program received badly needed technology upgrades to better achieve automation of processing. As additional resources flowed into INS s naturalization program, the agency more than doubled the number of completed naturalization applications, which skyrocketed from 611,000 in FY 1998 to nearly 1.3 million in both FY 1999 and FY (see table 1). Naturalization adjudications processing has improved substantially since FY INS was able to achieve a substantial reduction in processing time, down from a high of 31 months in 1997 to 6 months in This achievement was a positive indicator that the health of the program could eventually be restored. However, it is important to note that this dramatic success was made possible by a dramatic increase in officer work years devoted to naturalization, a 164% increase in the application fee from $95 to $225 plus a $25 fingerprinting fee, 11 as well as a 67% decrease in applications filed. 9 Sources: U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001; 2002 data courtesy of INS, PAS Data as of 10/30/02; 2001 estimated processing times from DOJ FY01 Performance Report/FY02 Revised Final Performance Plan/FY03 Performance Plan; all other 2001 data from INS Monthly Statistical Report, September FY 2002 Year End Report. 10 U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p Austin T. Fragomen, Jr. et al, Immigration Procedures Handbook, 2000 Edition, West Group, p ; Daniel Levy, U.S. Citizenship and Naturalization Handbook, 2000 Edition, West Group, p

14 By 2002, naturalization processing had continued to improve in many districts, thanks to a fouryear effort to improve the program. As of October 2002, for example, the average naturalization processing time in the New York district was 7 to 8 months from filing to interview and 36 days from interview to oath ceremony. 12 Applicants who had filed in February and March 2002 were already being interviewed. 13 Reduction of Naturalization Backlogs: A Fragile Balance It took years to reduce to a manageable size the huge naturalization backlog that resulted from the CUSA crisis. The backlog reduction was a direct result of a major infusion of supplemental funding from Congress to pay for the necessary resources, including additional staffing, development of process improvements, and improved technologies. The story of the naturalization program, however, also illustrates how bad planning, poor communication and coordination, insufficient staffing and funding, inadequate technology, and new procedural mandates, can result in the complete paralysis of immigration services. Currently, the circumstances surrounding the transfer of immigration functions to DHS raise striking parallels with the CUSA era. The naturalization data reveal that the number of naturalization cases received has jumped from 461,000 in FY 2000 to more than 700,000 in FY 2002, while the number of cases adjudicated has dropped from nearly 1.3 million in FY 2000 to around 730,000 in FY This is a disturbing trend that could grow worse as the INS services division enters the uncertain era of homeland security, where enforcement reigns supreme. B. Adjustment of Status Everyone understands the importance of life events such as marriage, moving in order to start a new job, or inviting an elderly parent to join the family: the hope, the apprehension, and the unforeseen hurdles along the way. Immigrants face one clear additional hurdle: they cannot make such permanent decisions about life in the United States unless they can become lawful permanent residents. Every day, U.S. citizens and lawful permanent residents file petitions for family members to join them in the United States. Employers in need of specialized skills file petitions for workers to live in the United States so that they remain competitive in today s difficult market. Refugees and asylees who have fled persecution apply to make the United States their permanent home. Once these petitions are approved, the sponsored immigrant is eligible to file an application for lawful permanent residence. Sometimes, these applications are filed overseas. However, many people currently residing in the United States under nonimmigrant visas, as well as family members of U.S. citizens and lawful permanent residents, may choose to file adjustment-ofstatus papers in the United States. Unfortunately, many would-be residents remain stuck at this stage for years. 12 NYIC General Committee Liaison Meeting with INS New York District Office, October 23, NYIC General Committee Liaison Meeting with INS New York District Office, October 23,

15 As INS diverted resources to cope with the swelling naturalization backlog, the adjustment backlog grew. 14 The adjustment backlog has grown almost ten-fold, from approximately 120,000 cases in 1994 to more than 1 million in The adjustment backlog increased even though the number of officer workyears spent processing adjustment applications had increased, from 116 in 1994 to 240 in 2000, down from a high of 280 in In 2000, an INS study revealed that 25% of adjustment applications overall, 48% of adjustment applicants in New York, and 39% in Los Angeles were waiting at least 24 months for their cases to be adjudicated. 17 The delays in adjustment processing result in even greater strain on INS resources, as adjustment applicants whose cases are stuck are forced to file repeated applications for employment authorization and for travel documents, both of which must be renewed annually. 18 INS gets mired adjudicating hundreds of thousands of secondary applications, when the real solution is timely adjudication of the underlying adjustment application. Backlogs for classification as a family member of a U.S. citizen or lawful permanent resident and as a prospective employee on which adjustment applications are based have also increased substantially. The I-130 (family petition) backlog has increased from about 200,000 in 1994 to about 700,000 in The I-140 (employment based petition) backlog increased from under 10,000 in 1994 to almost 50,000 in As a result, thousands of family members and prospective employees get stuck in the process outside the United States. 14 U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p

16 Table 2: Adjustment Processing 20 Adjustment of Status Cases Received Cases Adjudicate d Backlog Officer work years Adjustment - adjudication s INS est. proc. time - months Backlog as % of adj. Caseload 1993 * * 146,000 * * * , , , * 26% , , , * 46% , , , % , , , % , , , % , , , % , ,000 1,001, % , , ,685 * 14 56% , , ,341 * 13 57% * Data not available. The increasing backlog in adjustment adjudications is an example of what can happen when resources are diverted from one program to another. This is exactly what happened from 1998 to 2000 when adjustment adjudications officers were diverted to clean up the naturalization backlog. Substantially fewer officer workyears have been devoted to adjustment than to naturalization, particularly since 1997, when the naturalization program was given high priority. Indeed, the number of officer workyears declined by 30% from 1997 to 1999, precipitating a 62% increase in adjustment processing time, even as the number of new applications filed was declining. Though officer workyears increased by 2000 and processing time improved substantially, the 2000 backlog expanded to over 1 million cases, increasing almost ten-fold in six years. At the close of FY 2002, the adjustment backlog still hovered close to 1 million. The adjustment backlog endures in many districts to this day, proof of the enduring problems created by diversion of resources from one program to another. As of October 2002, the New York District Office reported that the average adjustment processing time was 21 months from filing to interview and that there was a backlog of well over 100,000 adjustment applications. 21 As the adjustment program has lost resources to naturalization, its backlog has ballooned. Adjustment adjudications are well beyond the promised timeline. The adjustment program has requested additional resources to speed processing, including 534 new FY 2003 positions for 20 Sources: U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001; 2002 data courtesy of INS, PAS Data as of 10/30/02; 2001 backlog data from INS Monthly Statistical Report, September FY 2001Year End Report; 2001 cases received data from Eric Schmitt, Backlog and Wait for Green Card Decline, The New York Times, January 18, 2002; 2001 adjustment cases adjudicated data from DOJ FY01 Performance Report/FY02 Revised Final Performance Plan/FY03 Performance Plan. 21 NYIC General Committee Liaison Meeting with INS New York District Office, October 23,

17 adjudications, to no avail, despite the fact that INS already had the funds to pay for the positions. 22 With little apparent interest in the welfare of the program, adjustment adjudications enters the DHS transition in dire condition. C. Asylum and Refugee Processing Slowed to Historic Lows Refugees and asylum seekers, among the most vulnerable immigrant populations, also know the hardships of having their cases backlogged. The reorganization of the asylum program in the early 1990s led to a huge increase in its case backlog. It took more than five years for the program to recover. Currently security concerns have resulted in a dramatic reduction in refugee admissions, leaving thousands of victims of persecution stranded overseas. Both examples demonstrate that good intentions are not enough to produce fair treatment of those who seek U.S. protection from persecution. Reforms must be carefully crafted, or chaos and needless suffering will be the result. After passage of the Refugee Act of 1980, asylum applications were processed under interim regulations for ten years. Final regulations issued on July 27, 1990 created a trained corps of asylum officers and provided them with special resources to adjudicate asylum applications. The goals of the program were admirable: prompt approval of meritorious cases in conjunction with reducing frivolous applications. Notwithstanding the validity of these goals, for many years the reforms compounded problems rather than solved them. 23 The 1990 reforms resulted in a nearly 500% increase in backlogs over a five-year period because INS was under-funded and understaffed. The backlogs increased from 97,000 at the end of 1990 to more than 464,000 in The collapse of the asylum system left applicants lives in limbo for many years. 24 Improved asylum processing, like naturalization, is a story of hard-won and tenuous success. The program has improved since the troubled years of the early 1990s. However, any reduction in staff or funding, or administrative confusion, could easily erode these gains. Unfortunately, the transfer to DHS is likely to create just such disruptions, undoing years of hard work. The United States historically has been committed to providing refuge to the persecuted, but its mission to protect such persons has already been compromised by the post-9/11 security-focused regime. In fiscal year 2002, the Administration authorized the admission of 70,000 refugees, but only about 27,000 actually entered during the year the lowest number in the history of the U.S. Refugee Resettlement Program. The Administration attributed the shortfall in refugee admissions during the year to delays in instituting additional security procedures in the wake of 9/11. On October 17, 2002, President Bush issued the annual Presidential Determination that establishes the number of refugees that the United States will admit in the new fiscal year. The Administration authorized the admission of 70,000 refugees in FY 2003, but said that it only planned to admit 50,000 refugees (20,000 from Africa, 14,000 from the former Soviet Union, 7,000 from the Near East and South Asia, 4,000 from East Asia, and 2,500 each from Eastern 22 CBO Meeting with INS Headquarters, November 19, Gregg A. Beyer, Reforming Affirmative Asylum Processing in the United States: Challenges and Opportunities, American University Journal of International Law and Policy, Vol. 9, No. 4 (November 1994), pp INS Says Asylum Reform Efforts Are Working, Interpreter Releases, September 11, 1995, p

18 Europe and the Latin America/Caribbean region). It placed the remaining 20,000 refugee admission slots into an unallocated reserve that it does not plan to use unless they believe that the need for additional numbers develops. In the past, these unallocated slots have not been used. Early indications are, however, that the slowdown in refugee admissions continues, although all of the new security measures have been in place for months. Refugee arrivals during October and November 2002 (the first two months of FY 2003) were more than 75 percent lower than average for the same period in previous years. This sustained decrease in refugee processing since the September 11 th attacks is especially troubling since individuals in this system are often in the most unsafe and desperate circumstances of any individuals seeking entry into the United States, and the processing system through which they must pass is arguably the most thoroughly vetted of all immigrant streams. 15

19 III. FACTORS LIKELY TO INCREASE BACKLOGS AND DELAYS Over the past decade, INS has had tremendous difficulty implementing administrative changes of far lesser magnitude than those that will occur with the incorporation of immigration functions into the new DHS. Given this troubled record, the fracturing of immigration functions across the hierarchy and systems of the new agency provides numerous opportunities for breakdowns in application processing. Understanding the causes of INS application processing breakdowns in the past decade can help predict problems likely to occur as new stresses are placed on immigration adjudications systems with the DHS reorganization. Current circumstances bring together many factors that parallel the conditions that touched off the prior decade s more spectacular application processing dysfunctions. The four factors that are likely to increase backlogs and processing times as INS is transferred to DHS are (A) staff shortages, (B) insufficient funding for services, (C) administrative confusion and lack of coordination, and (D) a new procedures and systems that add delays rather than quality to adjudications. A. Staff Shortages Create More Backlogs Staff shortages have contributed to INS s inability to promptly process applications in the past and are a major factor that could make the backlogs much worse in the post-ins future. Although adjudications staffing has increased significantly since 1995, INS officials at headquarters and field offices report that they continue to need additional staff to stay current with their application workload, 25 which has nearly doubled from 5.9 million applications in 1995 to more than 11.6 million applications in Program staff shortages have been due to several factors, including the high turnover of temporary staff, especially adjudications officers, and an insufficient number of permanent staff positions. As the INS begins its transfer to DHS, the shortages are being exacerbated by additional factors, including the recent departure of large numbers of staff for more attractive positions with other agencies, the imminent retirement of a large percentage of experienced staff, low morale and uncertainty stemming from the transfer to DHS, and the INS s inability to hire new staff in sufficient numbers to replace those who have departed. High Turnover of Temporary Staff; Not Enough Permanent Positions. Officials at INS headquarters have pointed out that field office Adjudications and Naturalization program staff shortages have been due in part to the high turnover of temporary staff, especially adjudications officers. This high turnover has a major impact on applications processing, because the agency relies heavily upon temporary and contractor staff to deal with its workload: almost 50% of 25 U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, pp Figures derived from analysis of data from U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, pp. 13, 16; analysis of data from INS Monthly Statistical Report, September FY 2002 Year End Report. Workload is the sum of pending applications at the beginning of the fiscal year plus applications received during the fiscal year. U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO , May 4, 2001, p

20 INS s total adjudications workforce consists of temporary and contractor staff. 27 In March 1999, INS reported the attrition rate of temporary adjudications officers was more than double that of permanent officers working in the same districts. In the New York District Office, for example, the attrition rate was 35% for temporary officers versus 16% for permanent officers. In Los Angeles, the attrition rate for temporary officers was 28% as compared with 9% for permanent officers. 28 INS officials say they use temporary staff because the positions can be more easily reassigned from one field office to another depending on need, but this comes at the expense of hiring greater numbers of permanent adjudications staff, in whom could be invested better training to improve the quality of adjudications. Unfortunately, the shortage of permanent positions encourages the attrition of temporary staff, who often leave adjudications for more secure or better-paying job opportunities in Border Patrol or other agencies. 29 Attrition Increase Since 9/11. Attrition has long been a nationwide problem for the agency, 30 but INS has been losing staff at an alarming rate in the wake of 9/11. Many were attracted to higher paying positions with the new Transportation Security Administration (TSA). In 2002, the INS has seen a 500% increase in the loss of immigration inspectors and other employees to other agencies, such as the TSA, relative to previous years. 31 Another factor that may accelerate attrition is the elimination of union representation in DHS. Almost three-quarters of INS employees belong to unions. According to Chuck Murphy, president of the National Immigration and Naturalization Service Council, If people think there is hemorrhaging out of INS now, wait until they see what happens if Congress passes legislation that eliminates unions. 32 Even if the new immigration agencies were able to make up for these losses through hiring, the departure of many seasoned veterans will take a serious toll on organizational effectiveness. Retirement of Experienced Staff. The departure of many INS employees for other agencies comes at a time when INS already is facing the imminent retirement of nearly one quarter of its workforce. According to The Partnership for Public Service, 24% of INS employees will be eligible to retire by The reorganization of INS is likely to accelerate retirements, especially among longtime employees who fear that they might be in for chaotic times. The retirement of longtime career staff is particularly detrimental to the agency, as new staff do not have the institutional knowledge and have not participated in, and therefore will be hard-pressed 27 Figures derived from analysis of data from U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p U.S. General Accounting Office, Immigration Benefits: Several Factors Impede the Timeliness of Application Processing, GAO-1-488, May 4, 2001, p Starting salaries for applications adjudicators can be as low as $23,633, whereas the bottom range of the salary scale for Border Patrol agents and immigration inspectors is $30,466 and $37,428, respectively. See the U.S. Government s offical source of job information. 30 William K. Rashbaum, I.N.S. Agents Say Staffing Shortage Is Undercutting Counterterrorism, The New York Times, May 20, Partnership for Public Service, Homeland Security: Winning the War for Talent to Win the War on Terror, July 31, 2002, p Julie Sullivan and Richard Read, INS Crumbles Amid 9/11 Reforms, The Oregonian, September 10, Partnership for Public Service, Homeland Security: Winning the War for Talent to Win the War on Terror, July 31, 2002, p. 12; Stephen Barr, A Major Danger for Department of Homeland Security: Retirement, The Washington Post, June 17,