Prakash Khatri is pushing to patch an immigration leak he fears terrorists will sneak through.
Every year, hundreds of thousands of immigrants in the United States apply for green cards, documents granting them lawful permanent residency based on family connections or employment. Tens of thousands are denied, often months or even years later. Some denied applicants are slipping through the cracks, gaining a foothold in the country through a regulatory loophole and potentially posing a security risk.
The number of green card applicants has ballooned since the early 1990s as beneficiaries of the 1986 Immigration Reform and Control Act gained citizenship and encouraged relatives to apply for green cards, and mail-in applications began being accepted. Green card applicants are entitled to receive interim benefits-temporary employment authorization and consent to travel internationally-if their applications are not processed within 90 days. With a temporary employment authorization, generally valid for a year, immigrants can get Social Security numbers, driver's licenses and establish credit-all means of establishing legitimacy that extend far beyond 12 months. As the number of green card applicants has mushroomed, so has the number of people granted temporary employment authorization while awaiting their adjustment of status.
Those with temporary authorizations have gone through basic security checks, but their green card applications haven't been fully adjudicated nor has the FBI checked their names for financial or social affiliations to known or suspected criminal or terrorist organizations. Prakash Khatri, ombudsman at the Homeland Security Department's Citizenship and Immigration Services, believes that by granting interim benefits in large numbers, CIS is creating a major security risk.
According to Khatri, some people are applying for green cards just to get temporary employment authorization and obtain permanent documents such as driver's licenses. "There are thousands, maybe tens of thousands, of people annually who are scamming the system," Khatri says. "They know full well they're never going to get the eventual green card benefit, but they are applying for these green cards because the system allows them to." He says some intentionally apply for green cards in jurisdictions with long wait times.
The FBI background check poses a particular dilemma because it causes some of the longest delays in green card processing. People who are not immediately cleared have their interim benefits renewed annually while the bureau continues to investigate them. Khatri and other experts point out that it is counterintuitive to allow people who are waiting for security checks to live and work legally in the country, thereby enabling them to obtain documents to further legitimize themselves.
"Is a terrorist more likely than not to wait around for a green card or citizenship to blow up a building?" Khatri asks. "Isn't it more likely that the person is going to perpetrate their crime during their pendency rather than say 'I'll just wait for my green card or citizenship and then I am going to blow up the place.' I don't know about you, but I don't believe that's something a terrorist would wait around for."
Jessica Vaughan, a senior analyst at the Center for Immigration Studies in Washington, likens the situation to a motor vehicles department handling a too-long wait for driving tests by handing out temporary permits and having people come back later to take the test.
William R. Yates, an executive consultant with Border Management Strategies, a security- and immigration-focused consulting firm in Tucson, Ariz., and former CIS associate director of domestic operations, is less convinced that granting interim benefits poses a serious threat. Yates says FBI background checks are useful because they flag loose associations, not just convictions or clear risks identified by other security checks. "Some people that would come up on an FBI name check, there may not be any specific information relative to them, but they belong to an organization, a social club or church or something else, where there are individuals that are clear suspects and that may be enough for a flag to go up," Yates says. He calls Khatri's concerns "overblown." "There's always a potential with immigration . . . that you're going to have some risk, but that's part of the risk of a democracy and an open society that welcomes visitors and others to the country," Yates says. "To specifically identify these individuals as a potential national security threat, I just don't think the facts really bear that out."
Experts say misuse of interim benefits is a relatively recent problem. In the early 1990s, green card applications were processed faster, so fewer people received temporary benefits. Not only are more people applying for residency and gaining benefits while their applications are pending, but more of those applications are being denied, indicating that people ineligible for green cards are remaining in the country and receiving interim benefits while their applications are processed. The denial rate spiked from 6 percent of applications in 1997 to 20 percent in 2003 and was 17 percent in 2006.
CIS largely is meeting its national processing goal of six months, but the majority of its offices come nowhere near the 90-day processing target needed to eliminate the demand for interim benefits. Additionally, the agency is struggling to address a backlog. Nearly 330,000 applications are jammed up at the FBI. More than 30,000 of them have been pending for more than 33 months.
Khatri has set out his concerns in his last three annual reports to Congress and says he constantly discusses the issue within CIS. In July 2005, Homeland Security Secretary Michael Chertoff acknowledged the shortfalls in CIS' business model, saying the system "puts some of the most important security screening at the end of a lengthy process rather than the beginning, and leads to an unnecessary high rate of rejection late in the process."
So why does the problem persist? Though lengthy green card processing times are a burden for applicants and CIS officers, they generated as much as $345 million in revenue for the agency in 2005 through fees for employment and travel authorizations and premium processing to expedite green card applications. CIS is a fee-funded agency; it is obligated by law to generate enough revenue from processing and application fees to cover its expenses, including the cost of programs for which the agency charges no fee, such as refugee processing and naturalization filings by military service members. The agency has acknowledged its dependency on the fees it charges for interim benefits. CIS implemented a new fee structure in July, increasing the cost of applying for nearly every kind of benefit and immigrant status. Green card applicants now pay a drastically higher one-time fee to cover the cost of interim benefits. Critics say the higher fee is excessive and unfair because it requires applicants who do not file for interim benefits to pay for them. In announcing the change, CIS noted that it "eliminates the appearance of the agency prolonging processing times of the primary benefit application to collect fees on interim benefits."
CIS had not comprehensively reviewed its costs since 1998. Doing so before changing the fee structure in July "allowed us to see that we simply were not recovering enough money from our fees to pay for the services we provide," says CIS spokesman Chris Bentley. "We wanted to ensure that we had a steady stream of revenue, and we weren't relying on things like interim benefits in order to fund our operations." CIS predicts that revenue from the revised fee structure will reduce application processing times by 20 percent by the end of fiscal year 2009.
The agency plans to use revenue from premium processing fees to fund innovation and infrastructure improvements. The one-time $1,000 payment guarantees that a green card application will be processed in 15 days. Khatri worries that although it eliminates dependence on interim benefits income, the higher fee could prompt CIS to move slowly to improve regular green card processing. Yates says it is inconceivable that CIS would intentionally keep processing times long. "The agency would be hammered so badly if it did that," he says. Yates was instrumental in developing premium processing and says it was designed to fund modernization while speeding delivery of benefits. "The goal is you don't need premium processing because you've developed ways of adjudicating cases that quickly," he says.
But Yates and Khatri agree that Congress will need to get further involved before CIS will improve processing times and fully wean itself from interim benefit fees. Yates is skeptical that the agency will have sufficiently flexible access to the revenue generated under the latest fee structure. Khatri has urged legislators to establish a trust fund to allow CIS to test new processes.
Insiders and outsiders agree that CIS needs to do far more than simply recover its processing costs; it needs a major overhaul. The agency must address its application backlog or face increased public and congressional pressure. "There are some more fundamental changes in processing that need to be done," analyst Vaughan says. "It's going to take money, and it's unrealistic to think that it can be accomplished on the basis of application fees."