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Immigration and Naturalization Service's Premium Processing Program
Report No. 03-14
Office of the Inspector General
The Immigration and Naturalization Service (INS) administers the nation's immigration laws, and has both enforcement and benefit service responsibilities. The two objectives identified by the INS for providing benefit services are to adjudicate all immigration cases promptly and impartially in accordance with due process and to provide timely and consistent services and achieve a substantial reduction in the benefits processing backlog. According to the regulation that established the Premium Processing program and INS internal budget documents, the purpose of the Premium Processing program is to allow the payment of a $1,000 premium to assure expedited processing (within 15 calendar days) of certain employment-based visas,5 and to generate revenue that will be used for infrastructure improvements to reduce backlogs for all types of petitions and applications.
The premium service was conceived in 1999 when increasing pressure from Congress and private industry, mainly technology firms, was placed on the INS to expedite the processing of employment-based applications. In its Fiscal Year (FY) 2000 Conference Report, Congress mandated that the INS process certain employment-based applications within 30 days. According to INS officials, such a mandate would have had detrimental effects on adjudication efforts for other applications. In response, the INS sought to develop a program that would provide businesses with the services they needed without compromising other adjudications. The INS began working with the Department of Justice, the Office of Management and Budget, and various private and non-profit organizations to develop a program that would allow businesses to pay a premium for expedited processing of certain petitions.
On December 21, 2000, the President signed an amendment to the Immigration and Nationality Act (Act), which added the following new subsection:
The amendment did not explicitly define "Premium Processing"; therefore, the INS used its authority under Section 103(a) of the Act to establish the details of this new service, such as the processing timeframe and the Standard Operating Procedures.
The INS published an interim rule in the Federal Register, Volume 66, No. 106, on June 1, 2001, establishing Premium Processing for employment-based petitions and applications. The interim rule states that Premium Processing will enable the INS to expedite its services to those business customers who must sometimes recruit and hire foreign workers to fill jobs in short timeframes. The interim rule also states that the INS will use Premium Processing revenue to hire additional adjudicators, contact representatives, and support personnel to provide service to all its customers. The fee is also be used for infrastructure improvements.6
The INS designated Form I-129, Petition for a Nonimmigrant Worker, as the application form eligible for Premium Processing. The classifications within the Form I-129 eligible for the premium service as of June 1, 2001 were:
Additional classifications within the Form I-129 eligible for the premium service as of July 30, 2001 were:
These designations (1, 2, and 4 through 12) will continue until the INS publishes a notice of amendment or termination.
The INS estimated that Premium Processing would generate $25 million in revenue in fiscal year 2001 (due to a mid-year implementation date), and $80 million in revenue in fiscal year 2002.
In addition to the Act and the interim rule, the following new requirements were added to 8 CFR Part 103:
The premium service fees are deposited into the Immigration Examinations Fee Account (IEFA) along with fees from approximately 33 other routine applications and petitions. During discussions with INS officials we documented the INS's initial allocation of its estimated premium service revenues. In addition, we determined the INS's methodology for:
(1) establishing the revenue projections for routine applications; and
Of the $80 million in projected fee revenue from Premium Processing, $17.5 million was allocated by the INS to hire 141 additional adjudicators, contact representatives, and support personnel to provide service to all INS customers. An additional $7.5 million was allocated for fraud detection, which included the hiring of an additional 54 Special Agents and Intelligence Research Specialists. The remaining $55 million in program revenue was earmarked for general infrastructure improvements ($35 million) and additional staffing ($20 million) that would contribute to the overall backlog reduction efforts. We confirmed that the $25 million was spent to fill the 195 positions described above. However, we could not determine if the $55 million was used for general infrastructure improvements because disbursements from the IEFA were not tracked by the source of the funds. Generally, the INS includes its revenue estimates for funding the IEFA as part of its budget request to Congress. Once the budget is approved the INS monitors the IEFA only to ensure that on an overall basis disbursements do not exceed receipts.
The INS process for projecting routine application fee revenues began in the early 1990's with the establishment of a working group (consisting of representatives from the INS Budget, Statistics, and Adjudications Program Offices) charged with developing the official agency revenue projections for the IEFA. This group convenes on a quarterly basis to review and update previous revenue projections. The group looks at every application and petition type where a fee is charged, estimates the number of applications and petitions that will be filed within a given year, and forecasts the resulting fee revenues. These revenue estimates become the basis for each new fiscal year budget request to Congress. The budget request submitted to Congress does not tie specific application revenue estimates to a line item in the budget, but rather the individual application revenue estimates are consolidated into a single IEFA revenue estimate.
Once Congress approves the budget, the INS is not expected to adjust field operation activity based on the receipt of actual fees by application type. It is the overall receipt of application and petition revenue that is monitored to ensure that the receipts match the appropriation level approved by Congress. The INS can spend only up to the level approved by Congress. Any revenue received in excess of the congressional appropriation cannot be spent. A reprogramming request to Congress would be needed to seek increased spending.
According to INS officials, in cases where premium service revenues are identified to have exceeded original budget estimates, the first thing that would be evaluated is whether the overall revenue collected matched the congressional appropriation. If the revenue collected equaled the appropriation level, this would mean that revenues from routine applications came in lower than projected, and that higher revenues from premium processing covered the loss. If this happened, business would continue as usual and all programs and projects approved in the Examinations Fee Operating Plan would be pursued. The INS would justify the use of the additional premium revenue by stating that the funds were used to finance ongoing premium processing and backlog elimination efforts, albeit at a higher percentage than originally planned.
The reverse would be true if premium revenue was less than projected but revenue from routine applications was higher; the latter revenue would offset the shortfall in revenues from premium processing. In this case, the percentage of premium revenue dedicated to the backlog elimination efforts would be less than planned, and revenue from routine applications would be used to make up the difference.
As part of its annual budget request to Congress, the INS establishes estimates for the various revenue sources that make up the IEFA, such as fees for routine applications and petitions and for premium services. The individual revenue estimates are part of the consolidated IEFA revenue estimate. For expenditure projections, an annual operating plan is utilized to allocate the total IEFA revenue among the functions of the Information Services Division. During the year the IEFA is monitored to ensure that the overall receipts are meeting the appropriate level. The INS does not isolate premium service and individual application revenues from one another when determining if sufficient revenue has been collected to match the congressional appropriation. The fee revenue is consolidated and reported at the account level, which enables the INS to allocate the funds for field operations.
The four INS service centers that adjudicate Premium Processing petitions are: Vermont (VSC), Texas (TSC), California (CSC), and Nebraska (NSC). Each service center has its own jurisdictional and geographical responsibilities (see Appendix IV for areas of responsibility for each service center).
Premium Processing petitions are expedited through the adjudications process from the time they reach the service centers.8 Premium petitions are mailed to a separate post office box at each service center, and are collected and immediately processed through the mailroom and data entry centers. Mailroom staff check to ensure that the petition is eligible for Premium Processing, then gather all application materials and collect the attached fee payments. Data entry staff enter the petitioner and beneficiary information into CLAIMS (Computer Linked Application Information System), assign it an identification number, and place the entire application package in a color-coded file. The Premium Processing clock starts on the day the mailroom stamps Form I-907, Request for Premium Processing, as received.
Depending on the physical layout of the service center, premium petitions are either hand carried or shuttled to the adjudications staff.9 While the service centers vary in how they receive and process premium petitions, generally the current procedure is as follows:
Routine processing is similar to that of Premium Processing, without the priority given to premium petitions. For example, all routine petitions are mailed to a service center. Once received at the service center, they must be checked in IBIS, sorted, processed, and forwarded to the appropriate adjudications unit. However, mailroom and data entry processing may take significantly longer than one day.
During the adjudication process, routine petitioners do not have the same access to INS staff, and adjudicators are less likely to have personal contact with petitioners or their attorneys regarding missing or questionable information. Instead, any questions the adjudicators have on routine petitions are handled by sending a written Request for Evidence to the petitioners or their attorneys.
While the actual adjudication time is about the same for routine petitions, there is no Critical Aging Report for them and adjudicators are less aware of how long they have had a file. Also, while supervision differs in each service center, it is less stringent for routine petitions than for Premium Processing. For example, in some service centers, only denied petitions are reviewed by Supervising Center Adjudications Officers.
The following table shows the monthly number of premium petitions received and processed by each service center10 (Appendix II details the monthly receipts by type of classification for each of the service centers).
Monthly Premium Processing Receipts by Service Centers
Source: INS Information Services Division
The INS processed 136,416 premium service petitions from the inception of the Premium Processing program in June 2001 through September 2002. During the same period the INS issued 223 refunds, of which 129 were due to failure to complete processing within the guaranteed 15-day period. The following table delineates why the INS refunded these premium service fees.
Refunds Processed by Service Centers
Source: INS Information Services Division
As noted above, IBIS is a multi-agency database of lookout information that was initiated in 1989 to improve border enforcement and facilitate inspection of individuals applying for admission to the United States at ports of entry and pre-inspection facilities. IBIS is a joint effort of the INS, the Customs Service, and the Departments of Agriculture and State.11 It combines lookout information from 27 agencies into the Treasury Enforcement Communications System II (TECS II) database. The system, created and maintained by United States Customs Service, supports federal agencies by collecting information on individuals suspected of illegal activities.
TECS II was created to maintain and receive information on persons entering the United States and now serves as the central database for IBIS.
IBIS utilizes document readers that permit the reading of travel documents, improve the exchange of data between agencies regarding alien arrival and departure, and provide staff at ports of entry with the ability quickly to detect fraud, share intelligence, and prosecute violators.
IBIS contains numerous database files and connects with other databases such as the FBI's National Crime Information Center (NCIC). The INS service centers generally search the IBIS database using name and date of birth and the results of the search can include the following:
In November 2001, the INS instructed the service center directors to begin conducting electronic IBIS checks on four types of applications and petitions.12 By instructions issued in January 2002, the service centers are now required to conduct these checks on all types of benefit applications and petitions. Although the INS has successfully processed the vast majority of premium petitions within 15 calendar days, the expanded usage of the IBIS database in the adjudication process may adversely affect the meeting of this requirement.
In addition, we were made aware of other IBIS-related issues that can also affect the adjudication process. The INS has a Memorandum of Understanding (MOU) with the United States Customs Service regarding the use of TECS II information. The provisions of the MOU describe the common procedures to provide adequate security, data integrity, and performance. Generally, the INS agrees to comply with the appropriate administrative security provisions related to the use and dissemination of the information in TECS II and to consider all information in TECS II as "Unclassified, For Official Use Only." The INS is currently addressing the following policy issues with the intention of modifying them as appropriate:
According to the INS officials and staff whom we interviewed, the INS is working towards addressing these issues through procedural changes for submitting and processing applications. The agency is also pursuing amendments to the current law based on recent changes in immigration practices. For example, according to INS officials, the INS is seeking provisions in the law that will allow petitions to be placed in abeyance for prolonged periods of time.14