DHS OIG, OIG-09-79, The Special Immigrant Nonminister Religious Worker Program (2009)

Department of Homeland Security Office of Inspector General The Special Immigrant Nonminister Religious Worker Program OIG-09-79 June 2009 Office of Inspector General U.S. Department of Homeland Security Washington, DC 20528 MEMORANDUM FOR: Michael Aytes June 11, 2009 FROM: SUBJECT: Acting Deputy Director United States Citizenship and Immigration Services Richard L. Skinner Inspector General Letter Report: The Special Immigrant Nonminister Religious Worker Program (OIG-09-79) As mandated in the Special Immigrant Nonminister Religious Worker Program Act, we examined United States Citizenship and Immigration Services (USCIS) regulations, published in November 2008, designed to decrease benefit fraud. We concluded that USCIS has taken steps that can reasonably be expected to reduce fraud in special immigrant nonminister petitions, but that it is not possible to determine the exact amount of fraud reduction attributable to the new regulations. Adjudicators find nonminister petitions challenging, but the regulation has provided important tools, like an attestation requirement for petitioning organizations, to help identify fraudulent cases. Adjudicators said that the new process provides effective fraud deterrence.

USCIS managers said that more subtle fraud is expected to persist. We are making 5 recommendations to facilitate enhancements to the existing regulatory scheme. Should you have any questions, please call me, or your staff may contact Carlton I. Mann, Assistant Inspector General for Inspections, at (202) 254-4100. Background Congress amended the Immigration and Nationality Act in 1990, to create a special immigrant status for ministers and nonministers in religious vocations and occupations.1 Special immigrant nonminister religious workers must have been members of the denomination, and have worked in the capacity for which they are applying for at least the two years immediately preceding the petition.

Individuals who become special immigrants are lawful permanent residents and will be eligible to apply for naturalization. To qualify as a special immigrant, a petition (Form I-360) must be approved by USCIS. Reducing benefit fraud, which is considered the willful misrepresentation of material fact, has been a longstanding priority. In 2005, the USCIS Office of Fraud Detection and National Security (FDNS) conducted a Benefit Fraud Assessment (BFA) of religious worker immigrant petitions.

After examining pending and completed special immigrant religious worker cases, FDNS determined a 33% fraud rate existed. Nonexistent organizations had filed a large number of petitions, and material misrepresentations were common in documents submitted to establish eligibility.2 Following the BFA, FDNS instituted policy changes to enhance the integrity of the religious worker program. Site visits to verify the existence of petitioning organizations were implemented. USCIS also centralized adjudication of religious worker petitions at the California Service Center (CSC) to ensure more consistent adjudications and increased information sharing.

In April 2007, USCIS issued a proposed rule on Special Immigrant and Nonimmigrant Religious Workers. After public comment, USCIS issued final regulations on November 26, 2008. The regulation: • Expanded the definitions of terms specific to the program; • Required petitioners to attest to a number of facts related to the organization and the work that the beneficiary would perform; • Created greater evidentiary requirements, including an IRS tax-exempt letter; • Mandated proof of qualifying work experience; and • Continued the use of site visits as a verification tool. On October 10, 2008, Congress passed the Special Immigrant Nonminister Religious Worker Program Act, which extended the nonminister program to March 6, 2009.3 The extension was contingent on issuance of final regulations to reduce benefit fraud.

The Act mandated that we report on the effectiveness of the new regulations. 1 Immigration Act of 1990; Public Law 101-649 (Nov. 29, 1990). 2 “Special Immigrant and Nonimmigrant Religious Workers (Proposed Rule).” Federal Register 72:79 (April 25, 2007) p. 20442.

3 Public Law 110-391. The Special Immigrant Nonminister Religious Worker Program 1 Our fieldwork included interviews and file review at the CSC. We discussed religious worker procedures with the six adjudicators who process I-360 petitions, supervisors, and FDNS staff. We also examined 70 petition files and supporting documentation.

Fraud Reductions are Difficult to Quantify Although prior to publication of the final regulations, data gathered in June 2008 for an internal USCIS report concluded that site visits and centralized petition processing contributed to a reduction in fraudulent religious worker petitions. This report noted that special immigrant religious worker approval rates decreased from 67% in FY 2006 to 33% in FY 2007. Additionally, denial rates almost doubled, from 31% in FY 2006 to 60% in FY 2007. When considering voluntary petition withdrawals, non-approvals rose from 32% in FY 2006 to 66% in FY 2007.

USCIS also noted a 16% reduction in received petitions during the time period. Petitions may be denied or withdrawn for reasons other than fraud, but more stringent USCIS oversight is a major deterrent to organizations intending to commit benefit fraud. USCIS concluded, however, that it is difficult to quantify fraud reductions. Existing data makes “no claim of direct causality” between reduced petition approvals and decreased fraud.

Rather, it is “possible that cyclical trends alone or in some combination of other factors account for the changes observed.” While the data is strongly suggestive of fraud reduction, further research is required to determine the effect of anti-fraud measures. Although data used in the June 2008 report is consistent with other figures that USCIS has reported, there were discrepancies between the figures and data that we requested. The discrepant data also included FY 2008 and partial FY 2009 figures for petition approval and denial rates. Given these discrepancies, we were hindered in our analysis of fraud trends in the program.

Because resolution of data issues would not change the difficulty of quantifying exact fraud reductions, we did not pursue a complete USCIS explanation of the data inconsistencies we discovered. Although USCIS does track I-360 approvals as separate categories, I-360 denials are not tracked as separate minister and nonminister totals in USCIS data systems. Given the differential treatment of ministers and nonministers in the statute, and Congressional concern regarding nonminister fraud, a method for tracking denials for both categories is needed. CSC staff suggested this change to us.

Policy Changes can Enhance Anti-Fraud Efforts USCIS has developed a credible process to deter and detect nonminister petition fraud. All of the persons we interviewed praised the new process because it ensures more legitimate petitions. Adjudicators and their supervisors noted that consolidation of I-360 petition review at the CSC, and improvements to the I-360 form, have created a more efficient process to detect and deter fraud. The new I-360 attestation ensures that petitions meet regulatory requirements.

Petitioners must attest to 12 specific facts about the organization and the work the beneficiary is to perform. Adjudicators said that the The Special Immigrant Nonminister Religious Worker Program 2 attestation easily presents key facts, supported through evidence, which expedites review and allows for identification of missing information. We reviewed several files that demonstrated how adjudicators used authorities in the regulations to request additional information when petitions are incomplete. With petition processing in one location, consultations between adjudicators improve the consistency and accuracy of decisions.

Inherent Difficulties with Nonminister Petitions Adjudicators noted difficulties with special immigrant nonminister petitions. The program requires full-time work for all religious workers, but some organizations have difficulty documenting the full-time status of a beneficiary’s work. Other petitions did not have evidence that demonstrated the religious nature of a nonminister’s work. Even complete petitions can be difficult to evaluate.

For example, religious painters and sculptors are central to the faith of some denominations, while artists in other faiths are secular workers. Adjudicators said that understanding such differences was an intricate part of nonminister adjudications, especially because a denomination defines its own acceptable religious occupations. This standard could become a means for organizations to deem generally secular work as religious, or grant some faiths an advantage because of different views of religious occupations. In the proposed regulations, USCIS listed examples of nonminister occupations.

During the public comment period, concerns were expressed that the list favored Judeo-Christian petitioners. In the final regulations USCIS removed the examples. As the agency gains more experience dealing with petitions from various faiths, a list of occupations that are traditionally religious should be developed, and updated as necessary. Such examples are important for anti-fraud efforts because an FDNS manager said that religious worker fraud is more subtle now compared to the years before site visits and the attestation requirement.

Future illegitimate activities are projected to include petitions for people who do not do religious work, workers not performing stated duties, or organizations that do not need full-time workers. Further guidance on regulatory definitions of religious work would inform the public and ensure more complete petitions. Differences Exist between Religious Occupations and Vocations The regulation includes distinctions between religious vocations and occupations. Workers in a religious vocation, such as nuns and monks, must have “a formal lifetime commitment” through vows or similar means that demonstrate devotion to a religious way of life distinct from the activities of “the secular members of the religion.”4 Individuals in an occupation must meet all of the following requirements: 1.

The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination; 2. The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination; 4 8 C.F.R. § 204.5(m)(5). The Special Immigrant Nonminister Religious Worker Program 3 3. The duties are not in primarily administrative or support positions; and 4.

Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status.5 Individuals in a vocation, who are not required to meet these four standards, may do work that is not traditionally religious. There were cases in our file review where a position could not meet the entire religious occupation definition. These included musicians, secretaries, administrative officers, and others engaged in generally secular activities. However, a nun could work as the Hospitality and Home Economics Manager because of the regulation’s definition of a vocation.

Another petition was for a nun to engage in cooking, cleaning, laundry, and shopping. Under the regulation, if the employment is full-time, a religious worker with a vocation can get a petition approved for such a job. Files we reviewed contained pending petitions for occupations that did not meet the full- time and definitional tests. Examples included musicians with no other defined role, a Sunday school director with primarily administrative duties, and petitions with a significant amount of time for study or training.

Instructions for the I-360 form and the regulation list all definitional requirements of an occupation. Other documents explaining the regulations simply state that the work must primarily relate to a traditional religious function, just one of four parts of a permissible occupation. Revised fact sheets or other materials, would provide more complete information to the public. This should decrease the number of petitions received from organizations that will not be able to provide beneficiaries employment that meets the requirements of a religious occupation.

Steps can be Taken to Ensure Religious Organizations’ Tax Exempt Status Petitioning religious organizations must be “exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986.”6 Petitions must include a “currently valid” IRS exemption determination letter. However, USCIS has issued potentially confusing statements about what constitutes a valid letter. Because the letters do not expire, USCIS will accept determination letters regardless of date. However, while the agency correctly notes that a letter revoked by the IRS cannot be used to meet the regulatory requirement, any properly issued letter will always appear to be valid, even in the few cases where IRS subsequently revokes the organization’s tax-exempt status.

Of 45 new petition files we reviewed that had IRS letters, the average letter was twenty years old, including five letters from the 1960s. An IRS expert we interviewed said that organizations with letters that old could still be tax exempt. However, USCIS can issue policy to ensure that all determination letters are currently valid. Religious organizations rarely lose tax exempt status.

The IRS neither re-evaluates organizations after a letter is issued nor updates letters with the organization’s continued tax exempt status. However, IRS Publication 78, Cumulative List of Organizations, is 5 Ibid. 6 Ibid. The Special Immigrant Nonminister Religious Worker Program 4 available on-line.

This tool, rather than 45-year old letters, is the best way to determine the current tax exempt status of religious organizations. The IRS also produces a list of organizations that have recently lost tax exempt status. USCIS stated that the agency may consult Publication 78, but the current Adjudicator’s Field Manual does not require use of updated IRS information to ensure an organization’s current status. This would be useful, especially when a petitioner’s IRS letter had not been recently issued.

USCIS did not Adopt a Requirement that Petitioners Demonstrate a Need for Workers USCIS originally proposed that petitioners be required to demonstrate that the worker would “fulfill a reasonable need of the organization.” This language was not retained in the final regulations. A USCIS expert informed us that the standard was vague, with an implication that the government would become involved in the strategic employment decisions of religious organizations. This is a legitimate concern. Additionally, the regulations include compensation requirements and information in the attestation that minimize the chance that an organization will petition for unneeded workers.

Our file review included petitions from organizations that seemed primarily concerned with keeping beneficiaries in the United States, rather than documenting why the worker was needed. An organization submitted one petition so that an individual “may be eligible to permanently reside in the United States,” while another stressed the desire to keep the worker in the United States without much detail about the work requirement. Such cases can meet definitional requirements and be from legitimate organizations. Nonetheless, the regulation is not currently able to identify organizations that establish sinecure positions to gain permanent residency for unneeded staff.

For marginal cases, adjudicators could use a need requirement to gain further information about the proposed work. USCIS should use ongoing data review to study the utility of a need-based standard, but the legitimate concerns regarding inclusion of such a requirement in the final regulation led us to not recommend a policy change in this area. The Level of Interaction between Adjudicators and FDNS Can be Expanded In addition to the regulatory process improvements described above, USCIS can make procedural changes to the religious worker program. Interaction between adjudicators and FDNS personnel primarily results from adjudicator requests for FDNS to conduct site visits.

Adjudicators said that such contact is generally limited to e-mail. FDNS staff we interviewed reported limited interaction with adjudicators. Results from site visits are an important component in adjudicators’ approval and denial decisions. Given that the adjudicator relationship with most FDNS staff is remote, adjudicators have felt too removed from the site visit process.

Adjudicators do annotate specific issues for FDNS to explore during site visits, but it is unclear whether FDNS district office personnel receive the annotations. Increased communication would ensure that adjudicator concerns about specific petitions are adequately conveyed to the field. The Special Immigrant Nonminister Religious Worker Program 5 Adjudicators would like to learn more about FDNS’ work process. Such knowledge would give adjudicators greater understanding of petitioners and beneficiaries.

Several adjudicators suggested that they be allowed to periodically observe site visits. Additionally, adjudicators signaled a desire for more dialogue with FDNS staff. Existing roundtable discussions are a valuable tool for adjudicators and FDNS staff to share best practices and exchange information. Both parties supported these discussions, but lamented the infrequent nature of the roundtables.

Beneficiaries Warrant More Scrutiny in the Compliance Review Process Because site visits were developed in response to concerns about petitioner fraud, the process focuses on ensuring the credibility of the petitioning organization. April 2007 USCIS guidelines established that “[t]he primary focus of the site visit is on the petitioner.” Although a focus on petitioner fraud is effective and laudable, site visits also present opportunities to further scrutinize beneficiaries who are in the United States. The BFA concluded that beneficiaries present a credible fraud risk. Although 44% of cases demonstrated that an organization was illegitimate, 42% of cases included misrepresentations of beneficiary qualifications.

Given that the fraud of nonexistent organizations has largely been addressed, a renewed focus on willful beneficiary misrepresentation is warranted. We reviewed a site visit report suggesting revocation of a worker’s status because secular administrative services were being performed under the guise of a religious occupation. The organization argued that the individual did such tasks because religious work did not require enough of the beneficiary’s time, a violation of the regulatory language. Expansion of beneficiary compliance does not discredit existing site visits.

The regulations do not limit site visits to the time before a beneficiary gains special immigrant status. Ongoing monitoring can be a credible anti-fraud tool to ensure beneficiaries are engaged in acceptable work described in the I-360. Current regulatory language focuses the site visit process on the petitioner, but a beneficiary’s work is central to program integrity. Given the imminent implementation of the Administrative Site Visit and Verification Program, which will use contractors for initial site visits in 44 urban areas, additional resources may be available to conduct post-status site visits.

Recommendations We recommend that the Director of U.S. Citizenship and Immigration Services: Recommendation #1: Develop a mechanism for separately tracking I-360 special immigrant minister and nonminister petition denials. Recommendation #2: Create or revise, and disseminate to the public, examples of legitimate religious work and specific religious occupations that meet regulatory definitions. The Special Immigrant Nonminister Religious Worker Program 6 Recommendation #3: Require adjudicators to consult the Internet version of Internal Revenue Service Publication 78 and other IRS data on organizations that have lost tax exempt status. Recommendation #4: Expand the use of roundtables and other communication between adjudicators and FDNS service center and district office personnel.

Recommendation #5: Expand site visit policies to verify beneficiaries’ regulatory compliance after benefit issuance. OIG Analysis of Management Comments In its comments to our report, USCIS concurred with recommendations 1, 3, 4 and 5. It provided specific plans to implement recommendations 1 and 3, which are therefore resolved-open. o Compliance with recommendation 1 will have been accomplished once both the Form I-360 petition and the CLAIMS data system have been modified to facilitate separate tracking of minister and nonminister petition denials. We request that USCIS provide us with progress reports every 90 days. o Compliance with recommendation 3 will have been accomplished once appropriate revisions have been made to the National Standard Operating Procedures to suggest to adjudicators that they consult the online version of Internal Revenue Service Publication 78.

We request that USCIS provide us with progress reports every 90 days. Recommendation 4 suggested that the current communication between adjudicators and FDNS personnel be expanded. While USCIS concurs, most of the information in its response describes the status quo. Until we have a USCIS action plan, we cannot consider recommendation 4 to be resolved.

We request that USCIS provide us information about specific service center and FDNS initiatives to expand formal and informal communication. Recommendation 5 suggested expansion of site visit policies to verify beneficiary compliance after the religious worker status was granted to the beneficiary. Again, while USCIS concurs with the recommendation, most of the information in its response describes the status quo, and about the new Administrative Site Visit and Verification Program (ASVVP). While there are indeed contractual considerations to using ASVVP visits as a broader anti-fraud tool, the new program will free some or all of the FDNS resources currently devoted to routine site visits.

Until USCIS provides an action plan, we cannot resolve recommendation 5. We request that USCIS provide us information about specific plans to broaden petitioner site visits to include some beneficiary verification. The Special Immigrant Nonminister Religious Worker Program 7 USCIS did not concur with recommendation 2, and pointed out that the proposed list of examples was omitted from the final rule due to public comments USCIS received during the proposed rulemaking process. USCIS said in its comments to our draft report that such a list can create confusion about the scope of the definition of "religious occupation," and that examples of religious occupations would not serve any anti-fraud efforts as the denomination must still define its own acceptable religious occupations.

The burden of proof rests with the petitioner to establish that the occupation relates primarily to a traditional religious occupation within the denomination. We are persuaded by the USCIS explanation. Recommendation 2 is closed and no further action is required. The Special Immigrant Nonminister Religious Worker Program 8 Appendix A Purpose, Scope, and Methodology Our review was undertaken to comply with Public Law 110-391, Section 2, paragraph (c), which mandated that we report on the effectiveness of measures recently implemented by USCIS to eliminate or reduce fraud in the special immigrant nonminister religious worker visa category.

The new measures were published on November 26, 2008 (Federal Register 73:229, p. 72276). We interviewed managers at USCIS headquarters responsible for overseeing religious worker petition verification and adjudication; managers and adjudicators at the USCIS California Service Center, which processes religious worker petitions; and immigration officers that conduct on-site inspections to obtain their professional assessment of the impact the regulations have had on eliminating or reducing fraud. We discussed rules for tax-exempt religious organizations with a subject matter expert at the Internal Revenue Service. We also reviewed USCIS data and case records.

Our fieldwork took between March – May, 2009. We conducted our inspection under the authority of the Inspector General Act of 1978, as amended, and according to the inspection standards of the Council of Inspectors General on Integrity and Efficiency. The Special Immigrant Nonminister Religious Worker Program 9 Appendix B Management Comments to the Draft Letter Report The Special Immigrant Nonminister Religious Worker Program 10 Appendix B Management Comments to the Draft Letter Report The Special Immigrant Nonminister Religious Worker Program 11 Appendix B Management Comments to the Draft Letter Report The Special Immigrant Nonminister Religious Worker Program 12 Appendix C Major Contributors to This Report Douglas Ellice, Chief Inspector Darin Wipperman, Senior Inspector Jordan Brafman, Inspector The Special Immigrant Nonminister Religious Worker Program 13 Appendix D Report Distribution Department of Homeland Security Secretary Deputy Secretary Chief of Staff for Operations Chief of Staff for Policy Deputy Chiefs of Staff Acting General Counsel Executive Secretariat Director, GAO/OIG Liaison Office Assistant Secretary for Office of Policy Assistant Secretary for Office of Public Affairs Assistant Secretary for Office of Legislative Affairs USCIS Liaison Office of Management and Budget Chief, Homeland Security Branch DHS OIG Budget Examiner Congress Congressional Oversight and Appropriations Committees, as appropriate The Special Immigrant Nonminister Religious Worker Program 14 ADDITIONAL INFORMATION AND COPIES To obtain additional copies of this report, please call the Office of Inspector General (OIG) at (202) 254-4199, fax your request to (202) 254-4305, or visit the OIG web site at www.dhs.gov/oig.

OIG HOTLINE

To report alleged fraud, waste, abuse or mismanagement, or any other kind of criminal or noncriminal misconduct relative to department programs or operations: • Call our Hotline at 1-800-323-8603; • Fax the complaint directly to us at (202) 254-4292; • Email us at [email protected]; or • Write to us at: DHS Office of Inspector General/MAIL STOP 2600, Attention: Office of Investigations - Hotline, 245 Murray Drive, SW, Building 410, Washington, DC 20528. The OIG seeks to protect the identity of each writer and caller.