Hearing of the Senate Judiciary Committee - U.S. Citizenship and Immigration Services

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SEN. CHARLES GRASSLEY (R-IA): Mr. Chairman, first, I have two unanimous consents to put an opening statement in the record and, number two, to have some documents connected with my questions to be inserted in the record.

SEN. LEAHY: Without objection, so ordered.

SEN. GRASSLEY: The first thing I want to comment on is where Senator Specter left off. And I'm only making this as a statement, not something for you to respond to. But along the lines of what Senator Specter was saying about H-1Bs, it's my personal view, working with Republicans and Democrats on this issue, that the administration needs to think more about using its authority to deny visas. For instance, we have 18,000 Indian nationals here that India won't take back. And by the way, you don't have to worry I think about India torturing their citizens. At least I don't think they have that reputation. But at the same time, we've turned a blind eye and grant them 20(,000) to 40,000 H-2B (sic) visas each year.

My first question continues with H-1B visas but in a different vein. Some companies applying for H-1B visas actually are looking for positions like pizza tossers, hotel managers, llama farm operators. Even the Republican Party of California hired a Canadian as, quote- unquote, "state deputy political director" through the H-1B pilot programs. Now, these don't seem to me like the high-tech jobs that we're hearing from the industry that they need H-1B visas for.

On March the 10th, I sent a letter asking for you to show progress on the promise made August 2006 to reform visa programs, particularly H-1B. I asked about efforts to institute administrative reforms to rein in fraud and abuse. Your staff responded to me saying that the department has, quote, "convened working groups to identify and work on reforms," end of quote. I realize that Congress needs to enact some changes, but I think that this is a very cavalier response to my letter that I have here indicating that the issue of fraud and abuse and a vicious visa program is not being taken very seriously. In fact, I would have to say that your letter is a non-answer.

So my question: What are you doing to ensure that the program is being abused -- is not being abused and that the U.S. is bringing in the best and the brightest and not just a Republican Party political director for the state of California? Obviously they need some new advice out there.

SEC. CHERTOFF: Well, let me at least give you two examples. One is, we have, I think, promulgated a regulation that prevents or discounts companies that were abusing the process by filing multiple applications for the same people. There were some companies that were flooding the process by having, you know, 10, 20, 30 applications. And because it was a lottery system, they were basically buying more lottery tickets. So we've cut that out.

The second thing we want to do, although it's still in the administrative or regulatory processes, is we want to deal with the problem of companies that attempt to essentially horde the zone by so dominating the process or banking H-1Bs that other companies don't have an opportunity to compete. And that is in the rule-making process.

I confess to you, it always takes a lot longer to me than I'd like it to take, because the Administrative Procedure Act makes getting a regulation out of the executive branch like passing a kidney stone. It just takes an enormous amount of time. I'm kicking people to get this moving as quickly as possible, because I agree that the program has been abused. And I promise you I will continue to prod on these issues, because I agree with you; we should not let some companies try to exploit the process.

SEN. GRASSLEY: Okay. I would appreciate, on another point, this being the optional practical training program, more information. And I'll get into some details in just a minute. But this program is administered by your department. I'd like to make sure that we know who is here on OPT and what they're doing.

Foreign students obviously are the ones that take advantage of this. There's no requirements like wage requirements, no protections of our own U.S. students or workers, virtually no strings attached. These are people that could be sitting on the beach in California for a year. They could be playing some guitar on the streets of New York. Who knows what?

And I know you're responding to the squeals of powerful business interests regarding their inability to bring an infinite number of foreign workers through the H-1B visa program. Their latest attempt to get around the H-1B program is to keep these foreign students here longer than one year. We don't keep track of them.

So two questions: Does the Department of Homeland Security know how many people are in the United States on OPT status today? And secondly, does the department know where each and every person with OPT status is in the United States if they needed to track them down?

SEC. CHERTOFF: I believe the answer to that, but I'm going to have to verify it, is yes to the first. And to the second, you know, if we grant someone optional practical training, it's with the understanding they're going to be working in a particular setting.

Now, could someone abscond or violate the rule? Yeah, that happens all the time. I mean, people violate rules all the time. And then, of course, they would not only lose their OPT status, but they would lose the possibility of ultimately getting a green card or a long-term worker visa, which, from their standpoint and from the company's standpoint, would be a pretty serious sanction.

So I'll get -- I mean, I'll verify all this, but that's my understanding.

SEN. GRASSLEY: Last fall I sent you a letter asking for information about two University of South Florida students arrested near Goose Creek, South Carolina with explosives in their trunk. They're Egyptian nationals and have been charged with terrorism- related offenses.

I learned that one of them, Ahmed Mohamed, entered the United States on a student visa, despite having been previously arrested in Egypt. Worse than that, he had even declared his arrest on his visa application form. I then inquired to find out why the State Department and why your department failed to use their shared responsibilities over visa policies to keep an individual like this, and this specific individual, out of the country.

It took four months to get a reply from your department, and even then, all I got was a letter that denied my request on the grounds that the indicted terrorist had not consented to the release of his records.

So could you explain why this committee should be denied information necessary to conduct oversight of the visa issuance process just because an indicted terrorist, who is neither a U.S. citizen nor a legal permanent resident, didn't give his consent? Doesn't that sound a little ridiculous?

SEC. CHERTOFF: Yeah, it does. But unfortunately, sometimes we operate under legal constraints that are a little bit puzzling.

Let me tell you what my understanding of the rule is. First of all, obviously I can't publicly comment about the individual because there's a pending case. The case is going to go to trial. And if I say anything about the individual in a public forum, I'm going to have a judge getting on my back about why I'm, you know, creating a problem for the jury.

In terms of responding in writing, my understanding is that if the chairman makes a request to this kind of information, we are permitted, under the relevant laws, to convey a lot of this information. And that's just the way the law is written. I didn't write it. We have to abide by it.

So if the chairman makes the request, I think that does give us an ability to be a little more forthcoming about this.

SEN. GRASSLEY: Mr. Chairman, I'm not sure I was aware of that law. I was treated rudely by the department as a FOIA request, not as a senator's request. So I might ask you to sign a letter for some information that I might want on some of these issues that I'm not getting an answer because I'm not chairman of the committee.

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