DHS Immigration Attorneys
Workload Analysis and Workforce Planning Efforts Lack Data and Documentation Gao ID: GAO-07-206 April 17, 2007The legal staff of key Department of Homeland Security (DHS) components--Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP)--perform important immigration enforcement, inspection, and service functions. This report addresses the actions ICE, USCIS, and CBP legal offices are taking to identify attorney needs, determine where those attorneys should be deployed, and address staffing shortfalls. To conduct its work, GAO interviewed component senior legal office officials in headquarters and regional offices and reviewed available documentation on staffing.
GAO's prior work on strategic workforce planning states that staffing decisions should be based on valid and reliable data. However, ICE and USCIS's legal offices do not currently have such data available, though efforts are under way to obtain the data. Moreover, GAO's standards for internal controls in the federal government call for clear documentation, but none of the three legal offices have fully documented the processes, procedures, and data they use in their workforce planning decisions. ICE legal officials acknowledged that while an approach is in place for identifying attorney staffing needs, more data are needed to improve their attorney staffing decisions to help ensure that a sufficient number of attorneys are available to handle rising caseloads. ICE's legal office has relied primarily on its professional judgment to set a staffing ratio between attorneys and immigration judges. It also uses a workload system that tracks, for instance, the number of cases prepared. But attorney time, and other metrics, are not tracked. The legal office is working to incorporate these and other data into its existing system by December 2007. ICE's legal office has not yet fully documented its plans for enhancing its workload system by discussing how it intends to measure its progress or report the results of its efforts. Without such documentation, the office may not be able to effectively monitor its progress in meeting its goals related to this effort. Nor has the office documented its overall attorney workforce planning process, making it difficult for the office to validate its staffing decisions. USCIS officials acknowledged that its attorney workforce planning approach is based on estimates of workload data, such as the number of legal actions filed against USCIS, and that it is not possible to reliably determine attorney needs or anticipate shortfalls based on these estimates. Officials stated that DHS has not been in a position to support a request for additional attorneys for USCIS, because USCIS lacks sufficiently reliable data. These officials said that they coordinate with other USCIS offices to acquire additional legal resources. Efforts to implement a comprehensive workload system are to be completed by the end of fiscal year 2007, but the legal office has not yet documented its (1) plans for implementing this system describing goals, milestones, and other elements or (2) attorney workforce planning process. Thus, the office may not have reasonable assurance that its personnel are implementing workforce planning efforts as intended. CBP legal officials reported implementing a successful approach for assessing staffing needs by analyzing workload statistics, soliciting feedback from CBP program offices on their legal needs, and estimating the time attorneys need to complete their work. Using this method, the Chief Counsel said that the legal office has not experienced staffing shortfalls and has met rising workloads by obtaining funding to hire additional attorneys. However, CBP's legal office lacks documentation of its attorney staffing process, making it difficult to review and validate the success of its approach.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-07-206, DHS Immigration Attorneys: Workload Analysis and Workforce Planning Efforts Lack Data and Documentation
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Report to the Honorable F. James Sensenbrenner, Jr., House of
Representatives:
United States Government Accountability Office:
GAO:
April 2007:
DHS Immigration Attorneys:
Workload Analysis and Workforce Planning Efforts Lack Data and
Documentation:
GAO-07-206:
GAO Highlights:
Highlights of GAO-07-206, a report to the Honorable F. James
Sensenbrenner, Jr., House of Representatives
Why GAO Did This Study:
The legal staff of key Department of Homeland Security (DHS)
components”Immigration and Customs Enforcement (ICE), U.S. Citizenship
and Immigration Services (USCIS), and Customs and Border Protection
(CBP)”perform important immigration enforcement, inspection, and
service functions. This report addresses the actions ICE, USCIS, and
CBP legal offices are taking to identify attorney needs, determine
where those attorneys should be deployed, and address staffing
shortfalls. To conduct its work, GAO interviewed component senior legal
office officials in headquarters and regional offices and reviewed
available documentation on staffing.
What GAO Found:
GAO‘s prior work on strategic workforce planning states that staffing
decisions should be based on valid and reliable data. However, ICE and
USCIS‘s legal offices do not currently have such data available, though
efforts are under way to obtain the data. Moreover, GAO‘s standards for
internal controls in the federal government call for clear
documentation, but none of the three legal offices have fully
documented the processes, procedures, and data they use in their
workforce planning decisions.
ICE legal officials acknowledged that while an approach is in place for
identifying attorney staffing needs, more data are needed to improve
their attorney staffing decisions to help ensure that a sufficient
number of attorneys are available to handle rising caseloads. ICE‘s
legal office has relied primarily on its professional judgment to set a
staffing ratio between attorneys and immigration judges. It also uses a
workload system that tracks, for instance, the number of cases
prepared. But attorney time, and other metrics, are not tracked. The
legal office is working to incorporate these and other data into its
existing system by December 2007. ICE‘s legal office has not yet fully
documented its plans for enhancing its workload system by discussing
how it intends to measure its progress or report the results of its
efforts. Without such documentation, the office may not be able to
effectively monitor its progress in meeting its goals related to this
effort. Nor has the office documented its overall attorney workforce
planning process, making it difficult for the office to validate its
staffing decisions.
USCIS officials acknowledged that its attorney workforce planning
approach is based on estimates of workload data, such as the number of
legal actions filed against USCIS, and that it is not possible to
reliably determine attorney needs or anticipate shortfalls based on
these estimates. Officials stated that DHS has not been in a position
to support a request for additional attorneys for USCIS, because USCIS
lacks sufficiently reliable data. These officials said that they
coordinate with other USCIS offices to acquire additional legal
resources. Efforts to implement a comprehensive workload system are to
be completed by the end of fiscal year 2007, but the legal office has
not yet documented its (1) plans for implementing this system
describing goals, milestones, and other elements or (2) attorney
workforce planning process. Thus, the office may not have reasonable
assurance that its personnel are implementing workforce planning
efforts as intended.
CBP legal officials reported implementing a successful approach for
assessing staffing needs by analyzing workload statistics, soliciting
feedback from CBP program offices on their legal needs, and estimating
the time attorneys need to complete their work. Using this method, the
Chief Counsel said that the legal office has not experienced staffing
shortfalls and has met rising workloads by obtaining funding to hire
additional attorneys. However, CBP‘s legal office lacks documentation
of its attorney staffing process, making it difficult to review and
validate the success of its approach.
What GAO Recommends:
GAO is recommending that ICE‘s legal office fully document its plans
for incorporating additional workforce data and enhancing its workforce
tracking system; USCIS‘s legal office document its plans for
implementing a workload tracking system; and all three legal offices
document their attorney workforce planning processes. DHS generally
agreed with four of the five recommendations. CBP‘s legal office
disagreed with the recommendation to document its attorney workforce
planning efforts. It believes that the core workforce planning
principles discussed in this report are inapplicable to small offices
such as its office. GAO believes that these planning principles are
appropriate.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-206].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Richard Stana at (202)
512-8777 or stanar@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
DHS Components Are Taking Steps to Improve Workforce Planning for the
Attorney Staffing Process, but Need Better Data Related to Work
Activities:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: USCIS Program Office Positions Converted to Attorney
Positions:
Appendix II: Comments from the Department of Homeland Security:
Appendix III: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: ICE's Planned Enhancements to GEMS That It Reports Will
Provide Additional Data to Assist in Its Workforce Planning Efforts:
Table 2: USCIS Program Office Positions Converted to Attorney Positions
for Fiscal Years 2004-2006 by Program Office:
Figures:
Figure 1: Transfer of Immigration Functions from Former INS into DHS:
Figure 2: Number of Attorney Positions Funded at ICE, USCIS, and CBP
for the Fiscal Years Ending September 30, 2004, 2005, and 2006:
Figure 3: Funding Provided to ICE, USCIS, and CBP for Attorneys'
Salaries and Expenses for Fiscal Years 2004-2006:
Abbreviations:
CBP: Customs and Border Protection:
CCTS: Chief Counsel Tracking System:
DHS: Department of Homeland Security:
EOIR: Executive Office for Immigration Review:
GEMS: General Counsel Electronic Management System:
ICE: Immigration and Customs Enforcement:
INS: Immigration and Naturalization Service:
OCC: Office of Chief Counsel:
OPM: Office of Personnel Management:
USCIS: U.S. Citizenship and Immigration Services:
United States Government Accountability Office:
Washington, DC 20548:
April 17, 2007:
The Honorable F. James Sensenbrenner, Jr.
House of Representatives:
Dear Mr. Sensenbrenner:
The federal government's immigration enforcement responsibilities
encompass many legal functions, including those related to the removal
of aliens illegally present in the United States and the investigation
of those who engage in fraud. Immigration legal functions also pertain
to determining the admissibility of aliens during inspections at ports
of entry, and providing legal review and advice related to the
adjudication of millions of immigration benefit applications and
petitions (including naturalization and permanent resident
applications) filed each year.
Attorneys within three of the Department of Homeland Security's (DHS)
components play important roles in carrying out immigration functions.
Although each component's legal office reports to the DHS General
Counsel, their attorneys provide legal advice and services to the
components in which they are located. These components--U.S.
Immigration and Customs Enforcement (ICE), U.S. Citizenship and
Immigration Services (USCIS), and U.S. Customs and Border Protection
(CBP)--and their attorney roles on immigration matters are as follows:
* ICE is responsible for, among other things, enforcement of
immigration law. Attorneys within ICE's Office of the Principal Legal
Advisor prepare legal opinions on immigration cases, prosecute cases in
immigration court, and provide legal advice and support to other
personnel in DHS and the Department of Justice.[Footnote 1] In this
role, the Office of the Principal Legal Advisor supports the three
components' work to remove aliens illegally present in the United
States, enforce immigration law in the workplace, and prosecute alien
smugglers and human traffickers.
* USCIS is primarily responsible for processing applications for
immigration benefits such as applications for nonimmigrant visas,
permanent residence, U.S. citizenship, and asylum.[Footnote 2] USCIS
attorneys, through its Office of Chief Counsel, provide legal support
to the agency's program offices. This legal support includes, among
other responsibilities, providing legal advice on immigration and
administrative issues,[Footnote 3] providing litigation support to the
Department of Justice--in its role as lead counsel--in defending
lawsuits brought against USCIS in federal court, and representing USCIS
in visa petition proceedings before the Department of Justice's Board
of Immigration Appeals.[Footnote 4]
* CBP employs attorneys who, through CBP's Office of Chief Counsel,
provide legal support, training, and guidance to CBP personnel, review
proposed legislation, support the Department of Justice in civil or
criminal judicial actions involving CBP, and represent CBP in
administrative matters.[Footnote 5]
Immigration-related court litigation has steadily increased over the
last several years. For example, between fiscal years 2000 and 2005,
the number of civil cases prosecuted by ICE attorneys in immigration
courts increased almost 39 percent, from about 381,000 to 531,000
cases.[Footnote 6] Moreover, according to statistics maintained by the
Department of Justice's Executive Office for Immigration Review,
between fiscal years 2001 and 2005, the number of visa petition appeals
filed escalated almost 250 percent, from 1,129 to 3,950, increasing
USCIS attorneys' work in representing the agency before the Department
of Justice's Board of Immigration Appeals. Although CBP attorneys do
not play as prominent a role in supporting immigration litigation as do
ICE and USCIS attorneys, its Office of Chief Counsel's workload
statistics reflected a 15 percent increase in its aggregate workload
between fiscal years 2004 and 2005.
In your former capacity as Chairman of the House Committee on the
Judiciary, you requested that we conduct a study of these components'
attorney workforce planning processes. You also expressed concerns
about DHS's human capital management with respect to whether staffing
levels for attorneys responsible for providing legal services in
support of immigration activities within DHS have kept pace with
increasing caseloads.
In this report, we discuss what actions ICE, USCIS, and CBP legal
components have taken or plan to take to identify attorney needs,
determine where those attorneys should be deployed, and address
staffing shortfalls.[Footnote 7] Our report addresses ICE, USCIS, and
CBP actions related to workforce planning for attorney staffing from
the formal allocation of attorneys among these three DHS components
(May 6, 2004) through the end of the most recent fiscal year (September
30, 2006).
To determine what actions ICE, USCIS, and CBP have taken or plan to
take to identify their attorney needs, determine where to deploy those
attorneys, and to address staffing shortfalls, we principally relied on
interviews with knowledgeable officials from their legal offices. For
ICE, we met with the Principal Legal Advisor and representatives from
his headquarters and Arlington offices. For USCIS, we met with the
Office of Chief Counsel's Deputy Chief Counsel, Chief of Staff, and
other headquarters staff as well as the Regional and Deputy Regional
Counsel for the eastern region. We also met with an official from
USCIS's eastern regional program (operational) office. For CBP, we met
with the Chief Counsel, the Deputy Chief Counsel, and representatives
from the Houston office. We met with representatives from ICE's
Arlington legal office, USCIS's eastern region legal office, and CBP's
Houston legal office because these officials were knowledgeable about
the field office role in their agency's attorney workforce staffing
process. In addition, we examined available documentation from the DHS
components we reviewed, including staffing requests prepared for budget
justifications, statistics on ICE's and CBP's workload, and 2004
organizational assessments of ICE's and USCIS's legal offices. We also
obtained and analyzed information on alien detention costs DHS incurred
during fiscal year 2006 to assess the impact on DHS that ICE's legal
office told us occurs when ICE attorneys request delays in hearings. We
determined that information related to ICE's workload, specifically,
the number of national security cases ICE attorneys handled prior to
and after September 11, 2001, and alien detention costs were
sufficiently reliable for purposes of this report.[Footnote 8] We based
this decision on an assessment of the policies and procedures ICE uses
for collecting and maintaining this information. We also compared the
components' workforce planning processes to core workforce planning
principles outlined in our past work on strategic human capital
management and the Office of Personnel Management's (OPM) guidance on
human capital.[Footnote 9]
We conducted our work from July 2006 through March 2007 in accordance
with generally accepted government auditing standards.
Results in Brief:
Our prior work on strategic workforce planning states that staffing
decisions, including needs assessments and deployment decisions, should
be based on valid and reliable data;[Footnote 10] however, ICE and
USCIS's legal offices do not currently have such data available, though
efforts are under way to address this challenge. Our prior work has
also identified that written policies and procedures--including clearly
defined, well-documented, transparent, and consistently applied
criteria--are necessary to developing human capital approaches that
enable the sustained contributions of skilled staff. Moreover, our
standards for internal controls in the federal government state that
clear documentation should be readily available for examination.
Although ICE, USCIS, and CBP's legal offices reported having procedures
in place that are intended to determine the number of attorneys needed,
to deploy attorneys where they are needed most, and to address attorney
staffing shortfalls, none of these three legal offices have fully
documented their processes, procedures, and the data they use in these
workforce planning decisions. Without documented plans and procedures,
it will be difficult for the legal offices to review and validate their
staffing decisions or for others to independently assess the legal
offices' workforce planning efforts. This is particularly important to
help ensure that sufficient legal resources are available to meet
organizational goals related to immigration enforcement, inspection,
and service functions--particularly in light of rising legal workloads
in all three offices. Furthermore, without documentation, the legal
offices may not have and be able to provide reasonable assurance that
they are consistently applying their staffing process, implementing
their workforce planning efforts as intended, or sustaining their
efforts over time. An analysis of each legal office's approach to
workforce planning, and efforts under way to address challenges,
follows:
* Officials from ICE's legal office acknowledged that while an approach
is in place for identifying attorney staffing needs, more data are
needed to improve their attorney staffing decisions. ICE's legal office
has relied primarily on its professional judgment to establish a
staffing ratio between attorneys and immigration judges. This ratio,
historically based on two attorneys for each immigration court judge,
reflects the legal office's judgment of how the office's workloads
translate into an appropriate number of attorneys needed, and where
they should be deployed. The staffing ratio approach may not always
ensure that attorney resources are allocated where they are most needed
because it does not take into account the length of time needed to
complete each case. To help determine its staffing needs, the legal
office supplements this approach with a workload tracking system that
measures, for instance, the number of hearings attended. However, the
system does not track other information such as the time it takes
attorneys to conduct their work activities. Thus, ICE's legal office
lacks comprehensive data that it can rely on for making staffing
decisions. Officials from ICE's legal office also reported that the
office faces staffing shortfalls as caseloads rise, resulting in
delayed court proceedings, increased detention costs, and other
effects. Officials from the legal office stated that they are working
to incorporate additional data into the office's existing workload
tracking system by December 2007, to better manage the attorney
staffing process. Although ICE's legal office reports having ways to
measure its progress in making enhancements to its workload tracking
system and in reporting the results of its progress, the office has not
yet documented its performance measures or mechanisms for reporting on
the status of its efforts. Without such documentation, ICE's legal
office may not be in a position to effectively monitor its progress in
meeting its goals related to this effort or provide reasonable
assurance that its enhancements are being implemented as intended.
* USCIS legal officials stated that its attorney workforce planning
approach is based on estimates of workload data, such as the number of
legal actions filed against USCIS. These officials acknowledged that it
is not possible to reliably determine USCIS attorney needs or
anticipate shortfalls based on these estimates, since other workload
activities, such as the provision of legal advice to USCIS's program
offices, are not included. As a consequence, lacking sufficiently
reliable data, these officials stated that DHS has not been in a
position to request additional attorneys for USCIS. Instead, to address
some staffing needs, USCIS officials said that they have coordinated
with other USCIS offices to acquire additional legal resources. For
example, the legal office officials told us that they meet at least
quarterly with USCIS program office officials to discuss converting
vacant positions within the program office into attorney positions, to
help offset shortfalls. Although this approach has resulted in the
acquisition of new attorney positions, USCIS legal officials told us
they remain understaffed. Efforts to implement a more comprehensive
workload data management system to improve the staffing process are to
be completed by the end of fiscal year 2007, officials stated, but
USCIS's legal office has not yet documented its plans for implementing
this system. Without such documentation, the legal office may not have
reasonable assurance that its personnel are implementing the system as
intended.
* Officials in CBP's legal office reported that the office has
developed and implemented a successful approach for determining how
many attorneys the legal office needs to conduct its work, where to
geographically locate these attorneys, and to anticipate and address
shortfalls before they occur. They said that this approach involves
analyzing workload statistics, soliciting feedback from CBP program
offices on their legal service needs, and estimating the time attorneys
need to complete their work. Using this method, the Chief Counsel said
that the legal office has not experienced staffing shortfalls and has
met rising workloads by obtaining funding from the CBP Commissioner to
hire additional attorneys.
In this report, we make recommendations to the Secretary of Homeland
Security to document (1) ICE's plan for measuring its progress in
making enhancements to its workload tracking system and for reporting
on the results of its efforts; (2) USCIS's plans for implementing a
data management system to help ensure that the system is implemented as
intended; and (3) attorney workforce planning processes for each
component's legal offices to assist these offices in better managing
their staffing process for effectively achieving the legal offices'
goals.
We provided a draft of this report to DHS for review and comment. In
commenting on this report, DHS generally agreed with four of our five
recommendations. However, CBP's legal office disagreed with our
recommendation that it needs to develop documentation that clearly
describes its criteria, methodology, analysis, data, and the personnel
responsible for conducting workforce planning efforts. CBP's legal
office commented that while workforce planning principles included in
our exposure draft, A Model of Strategic Human Capital Management, may
be useful to managing large-scale federal operations, it believes the
principles are inapplicable to small offices such as CBP's legal
office, which has nearly 200 attorneys.[Footnote 11] We disagree. We
believe that the core planning principles discussed in this report are
appropriate for all workforce planning efforts, including those
conducted by CBP's legal office. Furthermore, as previously stated, our
standards for internal control in the federal government require that
significant events be clearly documented and that the documentation be
readily available for examination by an independent entity. A copy of
DHS's letter commenting on the report is presented in appendix II.
Background:
Transition of Legacy Agencies into DHS and Legacy Attorney Staffing
Allocations:
The Homeland Security Act of 2002 created DHS, bringing together 22
agencies and programs responsible for key aspects of homeland security
including immigration enforcement and service-related
functions.[Footnote 12] A legacy agency--the former Immigration and
Naturalization Service (INS)--was among the 22 agencies brought
together within DHS.[Footnote 13] As a result of this merger,
responsibility for immigration enforcement, inspection, and service-
related functions was transferred to three components within DHS--ICE,
USCIS, and CBP. Figure 1 shows the transfer of former INS immigration
enforcement and service-related functions into DHS.
Figure 1: Transfer of Immigration Functions from Former INS into DHS:
[See PDF for image]
Source: GAO analysis of DHS data.
[End of figure]
Before DHS became operational, on March 1, 2003, managers of the former
INS's Office of the General Counsel identified the proportion of its
710 attorneys to allocate among the legal offices within ICE, USCIS,
and CBP, according to DHS officials. DHS officials also told us that
the former INS's Office of the General Counsel made these decisions
based upon its judgment of the anticipated need each component would
have for providing immigration legal services and available attorney
work hours. As such, INS's managers determined that ICE should receive
an allocation of 600 attorney positions for its Office of Principal
Legal Advisor, USCIS should receive 62 attorney positions for its
Office of Chief Counsel, and CBP should receive 48 attorney positions
for its Office of Chief Counsel. On May 6, 2004, the DHS General
Counsel issued a memorandum formalizing INS's decisions.[Footnote 14]
CBP's Chief Counsel also told us that when DHS became operational, his
office (formerly the Office of Chief Counsel in the legacy U.S. Customs
Service) had 123 attorney positions. With the allocation of 48
positions from the former INS General Counsel's office, CBP's legal
office had a total of 171 attorney positions. Since May 6, 2004, then,
the three legal offices have obtained additional resources through
other action, such as the annual budget process. Figure 2 shows the
number of attorney positions that were funded at ICE, USCIS, and CBP's
legal offices for the fiscal years ending September 30, 2004, to
September 30, 2006.
Figure 2: Number of Attorney Positions Funded at ICE, USCIS, and CBP
for the Fiscal Years Ending September 30, 2004, 2005, and 2006:
[See PDF for image]
Source: ICE, USCIS, and CBP's legal offices.
[End of figure]
Organization and Funding for Components' Legal Resources within DHS:
ICE's legal office is led by a Principal Legal Advisor who is assisted
by a Deputy. The legal office is organized into 12 divisions. Eleven of
these divisions, such as Commercial and Administrative Law, Enforcement
Law, and National Security Law, are located in the headquarters office
in Washington, D.C. Officials from the legal office told us that as of
September 30, 2006, 119 of the office's 698 attorneys are located in
headquarters. They also said that as of September 30, 2006, the largest
division, Field Operations, has 579 attorneys located in 51 field
offices throughout the United States. This division is headed by a
Director with assistance from 26 Chief Counsels.
USCIS's legal office is led by a Chief Counsel who is assisted by a
Deputy Chief Counsel. As of September 30, 2006, the office's 92
attorneys are located in USCIS's headquarters offices in Washington,
D.C., and its three regional offices throughout the United States in
proximity to USCIS's program offices. Each regional office is managed
by a Regional Counsel. Officials in the legal office said that 38 USCIS
attorneys are located in its headquarters offices, 21 attorneys are
located in the Eastern Region, 16 in the Central Region, and 17 in the
Western Region.
CBP's legal office is led by a Chief Counsel with support from a Deputy
Chief Counsel. At the end of fiscal year 2006, CBP's 192 attorneys were
located in offices throughout the United States in close proximity to
CBP's program offices. For example, the legal office's officials
reported that approximately 40 attorneys were located in headquarters
offices in Washington, D.C., at the end of fiscal year 2006, with the
remainder located in 27 field offices. The field offices are managed by
Associate and Assistant Chief Counsels.
Figure 3 illustrates funds provided to ICE, USCIS, and CBP legal
offices for their attorneys' salaries and expenses for each of the
fiscal years 2004-2006.
Figure 3: Funding Provided to ICE, USCIS, and CBP for Attorneys'
Salaries and Expenses for Fiscal Years 2004-2006:
[See PDF for image]
Source: ICE, UCIS, and CBP's legal offices.
[End of figure]
Guidance on Strategic Workforce Planning:
Strategic workforce planning helps ensure that an organization has the
staff with the necessary skills and competencies to accomplish its
strategic goals. Since 2001, we have reported strategic human capital
management as an area with a high risk of vulnerability to fraud,
waste, abuse, and mismanagement. In January 2007, we reported that
significant opportunities remain to improve strategic human capital
management in the federal government to respond to current and emerging
21st century challenges.[Footnote 15] For example, we reported that
DHS's human capital systems require continued attention to help prevent
waste and ensure that DHS can allocate its resources efficiently and
effectively.
We have also issued various policy statements and guidance reinforcing
the importance of sound human capital management and workforce
planning. Our human capital guidance states that the success of the
workforce planning process that an agency uses can be judged by its
results--how well it helps the agency attain its mission and strategic
goals--not by the type of process used.[Footnote 16] The guidance also
highlights eight critical success factors in strategic human capital
management, including making data-driven human capital decisions and
targeted investments in people.[Footnote 17] To make data-driven human
capital decisions, the guidance states that staffing decisions,
including needs assessments and deployment decisions, should be based
on valid and reliable data. Furthermore, the guidance states that to
make targeted investments in people, organizations should clearly
document the methodology underlying their human capital approaches. We
have identified these factors, among others, as critical to managing
human capital approaches that facilitate sustained workforce
contributions.
Additional guidance we issued on strategic workforce planning outlines
key principles for effective workforce planning. These principles
include (1) involving management, employees, and other stakeholders in
the workforce planning process; (2) determining critical skills and
competencies needed to achieve results; (3) developing workforce
strategies to address shortfalls and the deployment of staff; (4)
building the capabilities needed to address administrative and other
requirements important in supporting workforce strategies; and (5)
evaluating and revising these workforce strategies.[Footnote 18]
OPM has also issued strategic workforce planning guidance to help
agencies manage their human capital resources more
strategically.[Footnote 19] The guidance recommends agencies analyze
their workforce, conduct competency assessments and analysis, and
compare workforce needs against available skills. Along with OPM, we
have encouraged agencies to consider all available flexibilities under
current authorities in pursuing solutions to long-standing human
capital problems. In addition, our guidance outlines strategies for
deploying staff in the face of finite resources.[Footnote 20]
DHS Components Are Taking Steps to Improve Workforce Planning for the
Attorney Staffing Process, but Need Better Data Related to Work
Activities:
Officials at ICE, USCIS, and CBP reported using a range of approaches
to determine their staffing needs, deploy attorneys to locations where
they are needed most, and anticipate and address attorney shortfalls.
However, none of the components' approaches have been documented and no
mechanisms exist for validating attorney staffing decisions. Both ICE
and USCIS officials acknowledged that they do not have reliable
workload data to determine their staffing needs, make allocation
decisions, and identify staffing shortfalls, but report taking actions
to obtain more and better data. Despite not having the data needed to
reliably determine staffing shortfalls, ICE and USCIS's legal offices
said that current staffing levels are insufficient for conducting their
work. CBP's legal office told us that through its workforce management
practices it is able to anticipate shortfalls and develop strategies to
avoid them such as securing funding for additional attorneys before any
shortfalls occur.
ICE Lacks Data Needed to Reliably Determine Its Overall Attorney
Staffing Needs, but Is Taking Action to Collect Such Data:
Officials from ICE's legal office reported having an approach to staff
attorneys and identify staffing shortfalls; acknowledging that the
methodology for this approach lacks sufficient data and is not
documented, they plan to collect and incorporate workload data into
staffing decisions. To determine how many immigration attorneys are
needed for its work, where those attorneys are to be deployed, and how
staffing shortfalls are to be addressed, ICE's legal office primarily
relies on the number of immigration judges who preside over immigration
courts throughout the country. Specifically, the legal office's
officials make their attorney staffing decisions by establishing a
ratio of the number of attorneys needed per judge--an approach
developed before the inception of DHS by the legacy INS General
Counsel's office. Officials in ICE's legal office said that this
approach was, and is currently, based on management's professional
judgment of how their office's workload translates into the appropriate
number of attorneys needed, as well as where they should be deployed.
The ratio is, therefore, used as the basis for the legal office's
decisions to request additional attorneys through the annual budget
process.[Footnote 21] Officials in ICE's legal office also told us that
for particularly complex, sensitive, or high-profile cases, such as
those involving national security, they supplement the ratio approach
by considering the staffing needs of each of its offices and the
historical and current workload related to these types of cases that
are assigned to each office to help them make staffing decisions. Using
this approach, the legal office reported that it allocated 61 attorneys
during fiscal year 2006 to 25 of its field offices to handle these
types of cases.
Officials in ICE's legal office told us that they have historically
decided that they should assign two attorneys to handle the office's
immigration workload for every immigration judge--and this forms the
basis of the ratio approach that has been used. These officials also
told us that this decision was based on the assumption that because
immigration judges hear cases 7 to 8 hours each day, one attorney would
always need to be in court and another would be needed to complete
other related matters such as case preparation, legal research, or
provide legal advice to ICE offices. Officials in the legal office also
stated that this decision was based upon factors that were related to
the workload that existed at the time the ratio was established. They
said that the staffing ratio approach is based on professional judgment
and historical experience and takes into consideration some workload
data maintained by the immigration courts, such as the number of
appeals stemming from immigration judge decisions.[Footnote 22]
However, other workload metrics, such as the time attorneys spend
researching and preparing for cases are not considered when making
these decisions because ICE's legal office does not yet have systems
fully in place to track these data, according to its officials.
Consequently, the staffing ratio approach is not based on comprehensive
workload data, nor is it grounded in reliable workload data. For
example, one assumption built into the current staffing ratio is that
each ICE attorney conducts the same amount of work for every
immigration judge. However, this may not always be the case, given that
differences exist in the volume and complexity of cases, which could
mean that different numbers of attorneys are needed.
The legal office's staffing ratio approach to making decisions about
attorney staffing has not been fully successful in helping the agency
avoid staffing shortfalls. Officials from ICE's legal office reported
to Congress in February 2006 that they faced attorney staffing
shortfalls due to rising caseloads, increased complexity in cases, and
an expansion of the agency's mission into areas such as customs law.
They told us that they continue to face shortfalls because recent
increases in both the number and the complexity of immigration cases
have led to increases in the number of cases handled by a judge and in
the amount of time required for case preparation work--all of which has
a bearing on attorney staffing and workloads. These officials also told
us that as a result of increased workloads they often request delays in
court proceedings to obtain sufficient time to prepare for cases, but
have no data to quantify the number of delays requested. Moreover, they
said that these delays result in increased costs for DHS when the cases
involve aliens placed in agency custody. For example, they stated that
each day the hearing was delayed costs DHS approximately an additional
$100 for housing an alien in fiscal year 2006. In addition, officials
from ICE's legal office said that an increase in case complexity and an
expansion of the office's responsibilities, such as providing legal
advice regarding customs-related enforcement matters, also requires
additional resources to perform legal work outside of court.[Footnote
23] Officials from ICE's legal office told us, for instance, that
prosecution of aliens who pose a threat to national security--
particularly time-consuming cases--has increased from about 50 cases
per year before September 11, 2001, to approximately 700 cases in
fiscal year 2006. The legal office officials told us that it had 4
attorneys in headquarters handling national security cases before
September 11, 2001, and 13 attorneys in headquarters handling such
cases in fiscal year 2006. The legal office reported taking action to
address existing attorney shortfalls by requesting funding for
additional attorneys through the annual budget process. For example,
the legal office requested funding for 193 additional attorney
positions in fiscal year 2006 as part of its fiscal year 2007 budget
request--positions that were ultimately funded for half of fiscal year
2007 as part of DHS's fiscal year 2007 appropriation. To avoid future
shortfalls, officials from ICE's legal office said that they are
currently working to increase coordination with the Justice
Department's Executive Office for Immigration Review (EOIR), which
administers the immigration courts, to anticipate the placement of new
immigration judges or the transfer of existing judges from one location
to another. The legal office officials said that because a key data
element for their workforce planning methodology is the number and
location of immigration judges, increased coordination with EOIR will
allow the legal office to better anticipate its attorney needs at
various locations around the country.
Despite these actions, the shortfalls that have arisen as a result of
these changing conditions have, according to officials from ICE's legal
office, affected the agency's ability to carry out its mission. For
example, the legal office officials said that because they currently
face staffing shortfalls, they are unable to respond in a timely manner
when an alien requests a change of venue--that is, a request to move
the alien's case from one court to another court. They also said that
that if they cannot respond to a change of venue and explain why such a
request should not be granted, it is likely that a larger percentage of
these requests will be granted. According to officials from ICE's legal
office, aliens not in agency custody who are granted their request to
change venue often do not appear for their hearings and remain in the
country illegally. Furthermore, they said that the government may incur
unnecessary detention and transportation costs when such unopposed
requests are granted to detained aliens.
Questions about the effectiveness of the legal office's staffing ratio
as a reliable or sufficient means of ensuring that its attorney
staffing needs can be met, and shortfalls averted, are not new. In
2004, a business consulting firm hired to analyze the legal office's
staffing process concluded that the premise of the ratio approach was
no longer valid in light of rising caseloads and an increasing client
base. The consulting firm also concluded that the premise of the ratio
was not valid because the legal office had experienced a growth in the
number of attorneys who performed management tasks and these attorneys
were not included in the calculation of the ratio. Officials from ICE's
legal office stated that although the consulting firm's report to the
office's senior management underscored a need to improve its attorney
staffing process by incorporating more workload data, they intend to
continue using the ratio approach for determining attorney needs and
making allocation decisions until they can collect such data.
Our prior work on strategic workforce planning states that staffing
decisions, including needs assessments and deployment decisions, should
be based on valid and reliable data.[Footnote 24] Without basing its
attorney needs assessments as well as its deployment decisions on
comprehensive workload data that are valid and reliable, officials from
ICE's legal office cannot ensure that the ratio approach accurately
determines the number of attorneys the office needs, where they should
be deployed, and any shortfalls they may face.
ICE Reports Taking Action to Collect Data to Improve Workforce
Planning:
ICE's legal office has taken some action to improve the decision-making
process for attorney staffing. For example, officials from the legal
office said that in preparation of their fiscal year 2007 budget
request, they adjusted their target attorney-to-judge ratio from 2:1 to
2.5:1 in an effort to reflect the need for additional attorneys as
caseloads increase. This effort, however, was based, as in the past,
primarily on professional judgment rather than comprehensive workload
statistics.
ICE's legal office has also taken steps to enhance its workload data
collection efforts. Officials from this office reported that they
deployed a General Counsel Electronic Management System (GEMS)
nationwide, in fiscal year 2005, to organize and track information on
immigration cases and other workload projects. It also tracks workload
measures, such as the number of hearings attended. ICE legal officials
also said that they are also working on several enhancements to GEMS
that the office plans to implement during fiscal year 2007 that will
help to improve its workforce planning efforts. In 2002, ICE
established a Knowledge Management Division that, among other things,
is responsible for ensuring that these enhancements are implemented.
Table 1 describes these enhancements and the office's timeline for
implementing them.
Table 1: ICE's Planned Enhancements to GEMS That It Reports Will
Provide Additional Data to Assist in Its Workforce Planning Efforts:
Planned enhancement: Time accounting;
Description of enhancement planned: To provide ICE's legal office with
the capacity to track time its attorneys spend on their work by
activity;
Planned implementation date: December 2007.
Planned enhancement: Performance management;
Description of enhancement planned: To provide ICE's legal office with
the ability to extract information from data captured in GEMS to
generate performance measures that are intended to describe how well
the legal office is meeting its mission goals, whether they are on
track for meeting their performance targets, and whether their current
resources are sufficient to meet those goals; To identify those cases
that require the most resources; To identify workload trends, which
will assist ICE's legal office in predicting future workloads and
outcomes;
Planned implementation date: June/July 2007.
Planned enhancement: Knowledge management;
Description of enhancement planned: To provide ICE's attorneys with the
ability to readily identify and extract information about a case or
project that is similar to other cases or projects other attorneys may
be working on;
Planned implementation date: August 2007.
Source: ICE's legal office.
[End of table]
Officials in the legal office told us that they also established a
working group to analyze the legal office's processes and to determine
measures that would best describe the office's workload. They also
reported establishing a division that will be responsible for, among
other things, evaluating and validating the additional workload
measures captured by GEMS. According to the legal office's deployment
plan for these enhancements, some of the workload measures that the
office plans to collect will include the number of cases by type and
location as well as the time attorneys spend on these cases. This plan
also outlines how the legal office plans to incorporate these workload
measures in its future attorney workforce planning decisions. For
example, it states that officials from the legal office will determine
an average amount of time attorneys spend on each type of case by
reviewing and analyzing the number of hours attorneys spend on these
cases at each field office. As a result, this average will provide
senior management with an indication of the number of attorneys needed
to handle its projected caseload at all of its field offices. However,
ICE's legal office has not fully documented its plans for enhancing
GEMS. Although the Chief from the legal office's Knowledge Management
Division told us that he measures his office's progress in implementing
GEMS enhancements by using project milestones and orally reports to the
Principal Legal Advisor on these issues almost daily, the office's
planning documentation does not address these issues. Specifically, the
documentation does not state how the legal office intends to measure
its progress in making these enhancements or to report the results of
its efforts.
Industry best practices on information technology management stress the
importance of effective planning.[Footnote 25] Inherent in such
planning is the development and use of program management plans that
specify performance measures and reporting mechanisms. Furthermore, our
standards for internal control in the federal government call for clear
documentation.[Footnote 26] Such documentation could help ensure better
accountability, replication, and consistency. By not documenting
performance measures or mechanisms for reporting on the status of its
efforts to enhance GEMS, ICE's legal office may not be in a position to
effectively monitor its progress in meeting its goals related to this
effort.
ICE Lacks Documentation for Validating Its Attorney Workforce Planning
Decisions:
ICE's legal office has not documented its methodology or the role of
its staff responsible for determining its attorney needs, identifying
and addressing related shortfalls, or deploying attorneys where they
are needed. Our principles on strategic workforce planning state that
the methodology underlying staffing decisions should be well
documented.[Footnote 27] Our standards for internal control in the
federal government also recognize the need for clear
documentation.[Footnote 28] Without documentation, it may be difficult
for ICE's legal office to review and validate the decision-making
process or for others to independently assess the legal office's
efforts. Furthermore, if the legal office's rationale for its staffing
decisions, including factors it considered when establishing and
changing the ratio, is not documented, the legal office and its
stakeholders may not have and be able to provide assurance that its
staffing processes are being consistently applied or sustained over
time.
USCIS Acknowledges It Lacks Data Needed to Determine Attorney Staffing
Needs, but Efforts Are Under Way to Address the Problem:
Officials with USCIS's legal office stated that they need additional
attorneys to meet current workload demands and that they work with
USCIS program offices to acquire additional attorneys. Acknowledging
that the office has not fully implemented a system to reliably
determine its attorney staffing needs, make allocation decisions, or
anticipate and fully address staffing shortfalls, they reported that
they have efforts under way to resolve these issues. Officials in
USCIS's legal office said that despite its need for additional
attorneys to meet its current workload demands, USCIS's legal office
does not have comprehensive workload data to support requests for
additional attorney resources.
USCIS's legal office reported that its approach to managing workforce
planning decisions generally relies on professional judgment. For
example, it said that as part of the annual budget process, senior
legal managers discuss attorney needs and where attorneys should be
geographically located. They also told us that these managers consider
two inputs as part of this process. First, they said that they consider
workload estimates by analyzing spreadsheets that the legal office
personnel generate by recording certain workload activities, such as
the total number of legal actions filed against USCIS. However, these
officials said that this method generates incomplete workload data,
since other workload activities, such as the provision of legal advice
to program offices, are not included on the spreadsheets. Thus, the
officials said that these workload estimates may not be reliable
indicators of actual workload activities. Second, they said the
managers use feedback the legal office solicits from USCIS program
offices to help them assess their attorney needs and determine where to
allocate attorneys. This feedback includes information about recurring
legal issues or the need for a particular field office to have an
attorney on-site. Officials in USCIS's legal office acknowledged that
there is no fully implemented system in place, as of February 2007, to
track all of its attorneys' workload such as the amount of time
attorneys spend completing their workload activities or the total
volume of work the office faces. Our prior work on strategic workforce
planning has shown that staffing decisions, including needs assessments
and deployment decisions, should be based on valid and reliable
data.[Footnote 29] While professional judgment is an important and
valuable element of any decision-making process, without valid and
reliable data, it will be difficult for officials in USCIS's legal
office to ensure that their approach provides a reasonable
determination of the number of attorneys they need, where they should
be deployed, or any shortfalls they may face.
Officials in USCIS's legal office report that it has and is taking
action to obtain additional workload data to improve the reliability of
its staffing decisions, including how it identifies shortfalls, and to
support future budget requests. In 2003, to facilitate the transition
from legacy INS to USCIS, USCIS's legal office hired an independent
consulting firm to assess the office's staffing resources and solicit
feedback from USCIS program offices on their legal needs, among other
things. In March 2004, the consulting firm reported to USCIS's legal
office on the results of its assessment.[Footnote 30] Officials in
USCIS's legal office said they used the information from this
assessment to help determine the legal needs of USCIS program offices
and identify areas for improving how the office provides legal
services. In response to the assessment's recommendations, USCIS's
legal office's staff told us that they plan to fully implement a data
management system that will capture all of its work activities by the
end of fiscal year 2007 and that USCIS began efforts to implement this
system by purchasing software for it in October 2006. USCIS legal
office staff told us this new system will allow them to capture
comprehensive workload data such as the volume of legal advice
requested and provided, attorney hours spent on different types of
requests (e.g., legal advice or training), and the number of pending
visa petition appeals, among other things. They said they plan to
adjust their methodology for determining attorney staffing needs,
making allocation decisions, and identifying staffing shortfalls by
considering additional data on workload activities and the time
attorneys spend on these activities. They also said they plan to use
these data as support for future budget requests for additional
attorneys and as key inputs for an attorney allocation model they
expect to develop and put in place 1 year after the data management
system has been fully implemented.
The USCIS legal office's Chief of Staff orally reviewed with us the
office's goals, major milestones, work tasks, and monitoring efforts
associated with implementing this system. He told us that the office
had, among other things, completed its design of the functionality
requirements for the system and resolved security issues for installing
the software on USCIS's network in January 2007. He also said that the
office had installed software and conducted tests to ensure it was
working properly on each attorney's computer in February 2007 and plans
to spend the rest of the fiscal year entering data, such as requests
for legal advice, into the system. However, USCIS's legal office has
not documented its plans for implementing this system. Industry best
practices stress the importance of effective planning. Inherent in such
planning are the development and use of program management plans that
define, among other things, program goals and major milestones,
delineate work tasks and products and the associated schedules and
resources for achieving them, and specify performance measures and
reporting mechanisms.[Footnote 31] By not documenting its plans,
USCIS's legal office may not have provided and be able to provide
reasonable assurance that it is implementing its plans as intended to
effectively achieve its goals.
USCIS's Legal Office Coordinates with Other USCIS Offices to Remedy
Some Attorney Staffing Shortfalls throughout USCIS:
To address attorney staffing shortfalls, USCIS's legal office has a
strategy in place--but an acknowledged lack of reliable data on
workload requirements limits the strategy's effectiveness in reducing
shortfalls. According to staff in the legal office, on at least a
quarterly basis, officials meet with the leadership of USCIS's program
offices to discuss, on a case-by-case basis, converting vacant
positions within the program offices into attorney positions as a way
to help offset shortfalls. USCIS's legal office told us these
discussions focus on five factors: (1) the legal staff resources the
program office believes it needs to achieve its mission, (2) the number
of attorneys and program staff present at the geographic location of
the vacant position, (3) the perceived need to have an attorney on-site
to address legal issues, (4) estimates of the number of pending visa
appeals at the location, and (5) the quality and volume of decisions
being made at the location. Once these discussions have concluded,
USCIS's legal office said the program office decides whether having the
support of an additional attorney would better help the program office
achieve its goals than would hiring an additional program staff member.
USCIS's legal office staff said if the program office decides in favor
of hiring an additional attorney, the legal office will work with the
program office to recruit and hire an attorney to fill the vacant
position.
Officials in USCIS's legal office said that, depending on the
agreements reached with the program office, the salary and related
expenses for the newly converted attorney position can be funded
entirely by the program office. Alternatively, these officials stated
that both the program and legal offices could contribute funding to
cover the salary and other expenses associated with the position.
USCIS's legal office said it has obtained 10 additional attorney
positions through this process since 2004 (app. I provides additional
details on these positions). Although USCIS attorneys say these
additional attorney positions have helped the legal office meet some of
its workload demands, they still feel that they are understaffed
because they are unable to meet current workload demands.
Two concerns exist with USCIS's approach to managing its staffing
shortfalls. First, as previously discussed, USCIS legal officials
acknowledged that the attorney workload estimates on which its
decisions about shortfalls are based may not be reliable because
comprehensive workload data are not collected and analyzed; such data
would allow USCIS's legal office to reliably identify shortfalls for
the office as a whole. Second, USCIS's legal office has not documented
policies and procedures that identify the staff responsible for
managing such shortfalls and for assessing its attorney needs,
deploying its attorneys, and identifying shortfalls. In addition, the
legal office has not documented its approach for these staffing
processes. As stated earlier, our prior work on strategic workforce
planning and our standards for internal control in the federal
government have stressed the need for clearly documenting significant
events.[Footnote 32] Without documented plans and procedures, USCIS's
legal office may not be consistently evaluating the factors it
considers important when assessing attorney needs, determining where
attorneys should be located, or converting program office positions
into attorney positions over time. Furthermore, without such
documentation, it will be difficult or USCIS's legal office to review
and validate its decision-making process or for others to independently
assess the legal office's workforce planning efforts.
Although USCIS's legal office reported that it has been working to
implement better workload tracking procedures, until these efforts are
completed and fully documented, it cannot reliably determine its
staffing needs and related shortfalls or take action to fully address
such shortfalls. USCIS legal office officials also said that when the
office was initially created, they did not anticipate that defending
lawsuits brought against USCIS in federal court would constitute the
majority of their workload, limiting their ability to provide
sufficient legal advice to USCIS program offices. Thus, the legal
office remains at risk of not being able to meet its mission goals. For
example, officials told us that when an attorney visits a field office
that does not usually have an attorney on-site, the visiting attorney
is generally confronted with lines of program staff waiting to seek
legal advice at his/her office door. USCIS attorneys also told us that
by not being able to provide adequate legal training to program staff
on changes in immigration law, policy, and related proceedings, USCIS
is at risk of making incorrect decisions related to benefit
adjudications. USCIS's program officials also confirmed the legal
office's position by telling us that they do not get as much legal
support as they would like. For instance, the program officials said
that additional legal support is needed to improve the quality of the
program offices' adjudication decisions, particularly denials. The
program officials also said that without adequate legal support, the
agency remains vulnerable to an increasing number of appeals and
adverse decisions that could have been avoided through proper legal
review.
CBP Reports Implementing a Successful Attorney Workforce Staffing
Approach, but Lacks Documentation for Validating Its Decisions:
CBP's legal office reported that it has an approach in place to
determine its attorney staffing needs, deploy attorneys to locations
where they are needed, and anticipate attorney shortfalls, although the
approach has not been documented and no documentation exists for
validating CBP's attorney staffing decisions. The office told us that
its methodology for this approach consists of analyzing (1) workload
statistics, (2) feedback from CBP program officers regarding the legal
needs of those offices, and (3) estimates of the time it takes
attorneys to conduct their activities. After completing this analysis,
the legal office's senior management said that they apply their
professional judgment to make attorney staffing decisions.
CBP's legal office said that it uses workload statistics from its Chief
Counsel Tracking System (CCTS) to determine the frequency and level of
service its attorneys are asked to provide throughout the
year.[Footnote 33] CCTS captures data on the type and volume of
workload activities conducted by its attorneys, such as the number of
legal training courses conducted by attorneys for Border Patrol agents
and the number of times CBP attorneys provide advice to Border Patrol
personnel on land use issues. Officials in the legal office said that
they conduct workload evaluations of these statistics by analyzing the
number of cases opened, number of cases closed, and case types, by
attorney and office location, to help inform attorney staffing
decisions. The legal office officials said they also review statistics
in CCTS on a quarterly basis to look for trends in work areas.
Furthermore, they said that such an analysis helps the office
anticipate attorney needs in specific work areas as well as assist in
highlighting locations where attorneys may need to be deployed. For
example, they stated that when DHS was established, approximately 9,000
employees assigned to field offices located along the southern border
of the United States were transferred to CBP from the former INS.
Officials from CBP's legal office said that they reviewed statistics in
CCTS to help them determine the amount and type of legal work generated
by CBP employees with comparable responsibilities. In turn, they said
that this helped the legal office decide to create four new field
offices for attorneys in Texas--Laredo, McAllen, Del Rio, and Marfa--
and to place additional attorneys in El Paso, Texas, and Tucson,
Arizona. The legal office also said that it conducts workload
evaluations throughout the year, as needed, by holding discussions
among the executive staff to ensure that each headquarters and field
client is afforded an appropriate level of legal expertise.[Footnote
34] The Chief Counsel stated that he talks with his five Associate
Chief Counsels in the field almost daily, focusing on issues such as
the staff's approach to completing their work, issues to be resolved
when a case becomes increasingly complex, workload priorities, and any
workload surges occurring in particular issue areas or at specific
locations to help inform staffing decisions. Officials in the legal
office also stated that it compares the experience and skills of its
attorneys with the legal needs of its clients when determining in which
location attorneys might best be placed.
Officials from CBP's legal office told us that another key input in
their staffing decisions involves the feedback they solicit from CBP
program officers to learn what current and projected legal services the
program offices require. For example, they told us that Border Patrol
program officers told the legal office's staff that its need for legal
services would increase because CBP plans to place an additional 2,500
Border Patrol agents along the southern U.S. border in fiscal year
2007. As a result, the Chief Counsel reported obtaining funding for 15
additional attorneys based on a ratio of 6 additional Chief Counsel
attorneys being needed for each 1,000 newly added Border Patrol agents.
The Chief Counsel told us that he developed this ratio using his
professional judgment and actual case data from over 3½ years of
providing legal support to the Border Patrol program officials in CBP.
He said that in developing this ratio he also considered workforce
statistics on the number of (1) litigation cases related to border
patrol activities, (2) administrative proceedings, (3) employee
hearings, and (4) the Border Patrol's requests for advice. He also said
that these statistics provided him with an indication of the volume of
work stemming from border patrol activities and the number of attorneys
needed to efficiently manage the work his office does for the Border
Patrol component of CBP.
Officials in CBP's legal office told us that another key data element
involved in attorney staffing decisions is estimates of the time it
takes attorneys to complete their work. The Chief Counsel said that he
makes such estimates relying upon his own experience and professional
judgment. The legal office officials said that CCTS does not maintain
information on the time it takes attorneys to complete their work,
although they considered incorporating such a component into the system
in 1999. They said that they decided not to incorporate such a
component into CCTS because the benefits of having a component to
capture data on the time it takes attorneys to conduct their activities
would not exceed the costs of developing and implementing the
component. The Chief Counsel told us that there was no available
documentation of the analysis supporting this decision.
CBP Reports that Staffing Shortfalls Have Been Avoided:
CBP's Chief Counsel told us that as a result of his current workload
management practices, his office is able to avoid staffing shortfalls
by securing funding to acquire additional resources before any
shortfalls occur--although documentation is not available to validate
this conclusion. He also said that this approach allows CBP's attorney
offices to fulfill workload priorities, meet the legal service needs
throughout the agency, and attain performance targets such as
addressing litigation and administrative hearing issues by court-
imposed deadlines. He stated that when he determines a need for
additional resources, he will work directly with CBP's Office of
Finance and CBP's Commissioner to obtain funding to acquire these
resources. For example, in fiscal year 2005, the Chief Counsel obtained
funding to hire 23 additional attorneys to assist in addressing
anticipated increases in the office's workload. The Chief Counsel made
his funding request after conducting workload evaluations of CCTS data
and determining that his office's workload was steadily increasing in a
number of areas. In a memo to CBP's Commissioner related to this
request, the Chief Counsel explained that he would need additional
attorneys to (1) address the increasing number of administrative
hearings, (2) provide litigation support to the Department of Justice,
and (3) provide legal advice and training to CBP program offices.
CBP Does Not Have Written Policies and Procedures for Its Attorney
Staffing Process:
CBP's legal office does not have any written policies and procedures
that describe the criteria, methodology, analyses, data, and staff
responsible for assessing its attorney needs, determining where to
deploy its attorneys, and anticipating and addressing staffing
shortfalls before they occur. Although the legal office maintains
internal memorandums that document its requests for additional
staffing, the memorandums provided to us include general information
about the legal office's increased workload in various areas, and do
not explain how the legal office determined its staffing needs or
shortfalls.
Our prior work on strategic workforce planning has identified the need
for such written policies and procedures.[Footnote 35] Moreover, our
standards for internal control in the federal government calls for
clear documentation of policies and procedures that is readily
available for examination.[Footnote 36] Without documented policies and
procedures, there is no institutional record of the legal office's
actions. Therefore, it may be difficult to review and validate the
decision-making process for effective management oversight. Effective
management oversight is important for ensuring sound stewardship and
accountability of resources. Moreover, without documented policies and
procedures, CBP's legal office may not be able to ensure that its staff
consistently applies criteria it has established, implements procedures
as intended, or sustains those efforts over time.
Conclusions:
Since its inception, DHS and its components have performed an important
role in providing a range of law enforcement, immigration inspection,
and benefits adjudication services that help to protect the United
States against potential terrorist actions and address other problems
arising from illegal immigration. To achieve its mission in these
areas, it is important that DHS be able to manage its human capital
needs to ensure that skilled personnel are available when needed. The
hundreds of staff attorneys who litigate in immigration courts, and
provide other legal services to support immigration enforcement,
inspection, and benefit service missions are a key part of DHS's
workforce.
Although each component's legal office has developed its own approach
to attorney workforce planning, there are opportunities for ICE and
USCIS to enhance their planning processes to help ensure that
sufficient legal staff are available to litigate immigration cases and
perform other necessary legal services. ICE and USCIS report having an
insufficient number of attorneys to cope with rising caseloads. More
reliable, accurate data on a variety of attorney workload measures
could better position officials in anticipating staffing needs--and in
presenting a well-founded case to Congress for appropriate resource
levels. ICE and USCIS legal officials acknowledged that their attorney
staffing processes have not always afforded a reliable basis for
determining how many attorneys are needed to manage workloads, how
legal workloads can be managed to avert shortfalls, and how best to
deploy available attorney staff to ensure they are placed where most
needed. Both components are taking steps to address this problem--but
their efforts to implement new workload tracking systems or improve
data collection on workforce activities have not been completed. Data-
driven workload tracking and data collection efforts are necessary to
help the legal offices ensure that they are in a position to anticipate
and justify requests for appropriate resources needed to meet mission
goals related to immigration enforcement, inspection, and service
functions, and to make sound and reliable staffing decisions.
With respect to ICE, its legal office has not documented performance
measures or mechanisms for reporting on the status of its enhancements
to its workload tracking system (the General Counsel Electronic
Management System). Thus, the legal office may not be able to provide
reasonable assurance that its enhancements are being implemented as
intended. Nor may ICE's legal office be able to effectively monitor its
progress in making these enhancements. Moreover, ICE has not documented
its methodology for conducting workforce planning efforts, the
personnel responsible for conducting such efforts, and its rationale
for making staffing decisions including any factors it considered in
making those decisions. Without documentation of this methodology and a
rationale for making staffing decisions, it will be difficult for the
legal office to effectively monitor the results of its staffing
decisions or for the results to be independently validated.
Furthermore, without clearly documenting the personnel responsible for
conducting workforce planning efforts, it may not be possible for the
legal office to monitor or ensure accountability.
USCIS also faces challenges associated with its attorney workload
tracking system. Although USCIS legal office's Chief of Staff indicated
that his office has goals, major milestones, work tasks, and monitoring
efforts associated with implementing this system, there is no written
documentation associated with any of these elements. Without clearly
documenting program goals, major milestones, work tasks, products (such
as the time accounting system), and the associated schedules and
resources for achieving them, it may not be possible to effectively
implement this system as intended or on schedule. In addition, as with
ICE, USCIS's legal office has not documented performance measures or
mechanisms for reporting on the status of its workload tracking system.
Thus, the agency may not be able to provide reasonable assurance that
its enhancements are being implemented as intended or be able to
effectively monitor its progress in making these enhancements. Further,
as noted for ICE, USCIS has not documented its approach for conducting
workforce planning efforts or the personnel responsible for conducting
such efforts.
While CBP appears to be managing its attorney workforce planning needs
successfully, and has avoided attorney staffing shortfalls, it too
lacks formal written documentation that clearly describes the core
components of its workforce planning efforts--criteria, methodology,
analysis, data, and the personnel responsible for these efforts.
Without this documentation, CBP's planning process cannot be
independently validated.
Recommendations for Executive Action:
To strengthen the workforce planning efforts needed to achieve the
legal offices' goals, we recommend that the Secretary of the Department
of Homeland Security direct the General Counsel to take the following
five actions:
With respect to ICE's Office of the Principal Legal Advisor:
* document an implementation plan for measuring progress in making
enhancements to the General Counsel Electronic Management System and to
report on the results of efforts to enhance the system and:
* develop documentation that clearly defines its methodology for
conducting workforce planning efforts, the personnel responsible for
conducting such efforts to enhance accountability, and its rationale
for making staffing decisions, including any factors it considered in
making those decisions.
With respect to USCIS's Office of Chief Counsel:
* document the office's plans for implementing a workforce data
management system that clearly explains the goals of such an effort,
major milestones, work tasks and products and the associated schedules
and resources for achieving them, as well as performance measures and
reporting mechanisms associated with the effort and:
* develop documentation that clearly describes its approach and the
personnel responsible for conducting workforce planning efforts related
to (1) using workforce data and other information related to time
attorneys spend completing their work activities to develop needs
assessments and deploy staffing resources where they are needed most,
and (2) identifying and addressing staffing shortfalls to enhance
accountability over staffing decisions.
With respect to CBP's Office of Chief Counsel:
* develop documentation that clearly describes its criteria,
methodology, analysis, data, and the personnel responsible for
workforce planning efforts related to (1) using workforce data and
other information related to time attorneys spend completing their work
activities to develop needs assessments and deploy staffing resources
where they are needed most, and (2) anticipating or addressing staffing
shortfalls to enhance accountability over staffing decisions.
Agency Comments and Our Evaluation:
We provided a draft of this report to DHS for review and comment. DHS
provided written comments on March 23, 2007, which are presented in
appendix II. In commenting on the draft report, DHS reported that it
generally concurred with four of our recommendations, but disagreed
with the fifth.
ICE's legal office agreed with the intent of our first recommendation
that it document an implementation plan for measuring progress in
making enhancements to the General Counsel Electronic Management System
and to report on the results of efforts to enhance the system. The
legal office commented that ICE's Office of the Chief Information
Officer maintains documentation on the General Counsel Electronic
Management System's life-cycle management process that includes
documents such as early design description documents, flowcharts of the
office processes affected by the General Counsel Electronic Management
System, recommended office procedures for implementation, and planned
enhancements description documents.
We reviewed documents, such as the planned enhancements description
documents, relevant to this issue prior to sending our draft report to
DHS for comment. At that time, these documents did not contain
information on how ICE planned to measure its progress in making
enhancements to the General Counsel Electronic Management System or how
ICE planned to report on the results of its efforts to enhance the
system. However, after we provided our draft report to DHS for comment,
ICE's legal office drafted a task order to contract with a software
developer to assist in making enhancements to its General Counsel
Electronic Management System. As part of this task order, the legal
office included a listing of key milestones for system enhancements,
including information on measuring progress in making such
enhancements. The legal office also included documentation in this task
order that clearly articulates how, when, and to whom a status report
on the results of efforts to enhance the system should be communicated.
We believe these actions address the intent of the recommendation and
will assist ICE's legal office in effectively monitoring its progress
in meeting its goals related to this effort and in obtaining reasonable
assurance that its enhancements are being implemented as intended.
ICE's legal office also agreed with our second recommendation, that it
develop documentation that clearly defines its methodology for
conducting workforce planning efforts, the personnel responsible for
conducting such efforts, and its rationale for making staffing
decisions, including any factors it considered in making those
decisions. We believe such documentation is necessary to assist ICE's
legal office in reviewing and validating its workforce planning
decisions and in obtaining reasonable assurance that its staffing
processes are consistently applied and sustained over time.
In addition, ICE's legal office took issue with our finding that its
staffing ratio of attorneys to immigration judges is not based on
comprehensive workload data or grounded in reliable workload data. The
legal office cited that the ratio was developed within an analytical
framework based on workload data of the number of active cases, the
number of cases received, and the time it took to complete a case in
immigration court. However, as we discussed earlier in this report,
officials from ICE's legal office acknowledged that their approach for
staffing attorneys and identifying shortfalls lacks sufficient workload
data, such as the time attorneys spend researching and preparing for
cases, because the office does not yet have systems fully in place to
track these data, although efforts are under way to collect such data.
Thus, the ratio is not based on comprehensive workload data.
Furthermore, as we discussed earlier in this report, the consulting
firm the legal office hired to analyze its staffing process concluded
that the premise of the ratio approach was no longer valid in light of
rising caseloads and an increasing client base. The consulting firm
also concluded that the premise of the ratio was not valid because the
legal office had experienced a growth in the number of attorneys who
performed management tasks and these attorneys were not included in the
calculation of the ratio. Once comprehensive and reliable workload data
are available, the legal office should be in a position to
appropriately modify the ratio to assist in future workforce planning
efforts.
USCIS's legal office agreed with our third recommendation, that it
document the office's plans for implementing a workforce data
management system that clearly explains the goals of such an effort,
major milestones, work tasks and products, and the associated schedules
and resources for achieving them, as well as performance measures and
reporting mechanisms for the effort. The legal office also noted that
it intends to take action to address this recommendation.
USCIS's legal office noted that it generally agreed with our fourth
recommendation, that it develop documentation that clearly describes
its approach and the personnel responsible for conducting workforce
planning efforts. The legal office indicated that once it has
identified and captured workload data, it will be in a better position
to determine the type and volume of legal services requested by its
clients as well as whether current attorney levels are sufficient to
address the legal needs of the agency.
CBP's legal office did not agree with our fifth recommendation, to
develop documentation that clearly describes its criteria, methodology,
analysis, data, and the personnel responsible for conducting workforce
planning efforts. The legal office commented that it had provided us
with documentation of its workload data and excerpts from its Attorney
Practice Guide that describes the function and use of its Chief Counsel
Tracking System (CCTS), an automated system for maintaining workload
data. While this documentation does provide information on workload
data for the office, our conclusions and recommendation are based on
the fact that it does not describe or identify the legal office's
methodology for how it systematically analyzes and summarizes this
information to determine the number of attorneys the legal office needs
and where to deploy those attorneys. In addition, the legal office
commented that it had provided us with copies of two internal
memorandums relating to addressing staffing shortfalls. However, these
memorandums provide general information about the legal office's
increased workload in various areas, and do not explain how the legal
office determined its staffing needs or shortfalls. On the basis of the
legal office's comments, we added a discussion to this report to
clarify the information included in these memorandums.
Although we agree with CBP's legal office that the degree to which it
documents its workforce planning efforts is a management decision, we
believe that documentation should be sufficient to allow management
decisions to be validated by independent review. On the basis of our
audit, we concluded that additional documentation was needed to enhance
the transparency of the legal office's decision-making process. Such
documentation could also be used by the legal office's management to
track its workforce planning efforts over time and make continuous
improvements as appropriate. Furthermore, as previously stated, our
standards for internal control in the federal government require that
significant events be clearly documented and that the documentation be
readily available for examination by an independent entity. Appropriate
documentation is an internal control activity that helps ensure that
management's directives are carried out as intended. Such documentation
is critical in creating an institutional record in the event of
staffing changes to help sustain workforce planning procedures over
time.
In addition, CBP's legal office commented that while workforce planning
principles included in our exposure draft, A Model of Strategic Human
Capital Management, may be useful to managing large-scale federal
operations, it believes the principles are inapplicable to small
offices such as CBP's legal office, which has nearly 200
attorneys.[Footnote 37] We disagree. We believe that the core planning
principles, critical success factors, and fundamental ideas discussed
in this report, such as having workforce planning approaches with
clearly defined, well-documented, transparent, and consistently applied
criteria for making human capital investments, are appropriate for all
workforce planning efforts, including those conducted by CBP's legal
office.
DHS also provided technical comments, which we incorporated as
appropriate.
We plan no further distribution of this report until 30 days after the
date of this report. At that time, we will send copies to selected
Congressional Committees; the Director of the Office of Management and
Budget; and other interested parties. We will also make copies
available to others on request. In addition, the report will be
available on GAO's Web site at http://www.gao.gov.
If your office or staff have any questions concerning this report,
please contact me at (202) 512-8777 or by e-mail at stanar@gao.gov.
Other GAO contacts and key contributors to this report are listed in
appendix III.
Signed by:
Richard M. Stana:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: USCIS Program Office Positions Converted to Attorney
Positions:
To help address legal needs of the United States Customs and
Immigration Service (USCIS) program offices, the USCIS Office of Chief
Counsel (OCC) told us that its staff meets with the leadership of
USCIS's program offices, at least quarterly, to discuss converting
vacant positions in the program offices to OCC attorney positions. As a
result, the USCIS OCC reports that it has obtained 10 attorney
positions through this process since fiscal year 2004. Table 2
illustrates the number of program office positions that USCIS converted
to attorney positions for fiscal years 2004 through 2006 by program
office.
Table 2: USCIS Program Office Positions Converted to Attorney Positions
for Fiscal Years 2004-2006 by Program Office:
Originating program office: Domestic Operations[A];
Number of converted positions: 4.
Originating program office: National Security Records and
Verification[B];
Number of converted positions: 3.
Originating program office: Office of the Chief Information Officer[C];
Number of converted positions: 1.
Originating program office: Security and Investigations[D];
Number of converted positions: 1.
Originating program office: Transformation[E];
Number of converted positions: 1.
Originating program office: Total;
Number of converted positions: 10.
Source: USCIS data.
[A] USCIS Domestic Operations is responsible for processing and
adjudicating applications, petitions, and related fees and for
providing benefit decisions to customers.
[B] The National Security and Records and Verification program office
is responsible for establishing policies and procedures related to the
management of alien files and related records; developing,
coordinating, and leading the national anti-fraud operations for USCIS;
overseeing policies and procedures pertaining to background checks on
applicants and petitioners; and providing verification information to
federal, state, and local benefit-granting agencies.
[C] The Office of the Chief Information Officer is responsible for
providing leadership in the delivery of innovative, reliable, and
responsive information technology services to USCIS and its customers.
[D] The Office of Security and Investigations is responsible for
overseeing continuity of operations planning and implementation,
securing communications and document storage, providing security
awareness training, and implementing agencywide physical and facility
security programs.
[E] The Transformation Office is responsible for developing,
coordinating, prioritizing, and managing plans and initiatives for
improving USCIS business processes and technology.
[End of table]
[End of section]
Appendix II: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
March 23, 2007:
Mr. Richard M. Stana:
Director, Homeland Security and Justice Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Stana:
RE: Draft Report GAO-07-206, DHS Immigration Attorneys: Workload
Analysis and Workforce Planning Efforts Lack Data and Documentation
(GAO Job Code 440521):
The Department of Homeland Security (DHS), including officials within
Immigration and Custom Enforcement (ICE), Citizenship and Immigration
Services (USCIS), and Custom and Border Protection (CBP), appreciate
the opportunity to review and comment on the draft report referenced
above. The Government Accountability Office (GAO) makes five
recommendations which regard or affect DHS components.
Recommendation 1: ICE's Office of the Principal Legal Advisor (OPLA)
document an implementation plan for measuring progress in making
enhancements to the General Counsel Electronic Management System and to
report on the results of efforts to enhance the system.
OPLA agrees with the intent of the recommendation, and believes it is
currently being addressed. OPLA's General Counsel Electronic Management
System (GEMS) has historically been very well documented, and it will
continue to be so. Significant planning and documentation has gone into
the implementation of GEMS, which included the development of a
business case and timeline and a project plan summary. Currently, GEMS
captures a large amount of data, but admittedly it has a limited
capacity to translate that data into meaningful metrics. Future GEMS
enhancements, in combination with new software, will allow OPLA to
obtain the metrics needed to allocate attorneys properly.
The GEMS system has a paper trail of documentation from the ICE System
Life-Cycle Management Process (SLM). This documentation goes back 10
years from the outset of the system concept and is stored in the ICE
Enterprise Library System (ELMS), which is not part of any
documentation managed by OPLA. In fact, ELMS is managed by ICE Office
of the Chief Information Officer (OCIO), and the GEMS Technical Lead
for project management, who is within the OCIO's office. The GEMS SLM
documentation includes all required documentation, including a project
plan and historical and current (works in progress) documentation. The
historical documentation includes, among other things, the GEMS
business case and concept of operations; early design description
documents and interconnectivity planning charts; flowcharts of office
processes affected by GEMS and recommended office procedures for
implementation; version description documents, functional requirement
documents, system design documents, the implementation plan, and test
plan. Current documents being managed in the ELMS that relate to the
implementation and current enhancement processes include independent
test analysis, release readiness plan, notices of intent to release,
approval certifications, release descriptions, test plans and reports
from those plans, planning review approval, requirements review,
development test plans, and current version description documents that
contain information on planned enhancements.
To further develop, document, and leverage GEMS, OPLA has contracted
with a software developer to design and develop performance management
software. That software will be tools-based, off-the-shelf and
customizable. The developer is currently developing this software and
its implementation plans for this enhancement. When completed, these
plans will include milestones for testing both the capabilities of
product and deployment in the pilot phases. OPLA will then be able to
develop detailed procedures for any needed changes. OPLA reiterates,
however, that it already has in place significant documentation to
account for and to plan for its attorney needs and to document
divisional shortfalls regarding all aspects of its program. In
addition, the GEMS project has met and in many cases exceeded the
reporting and planning requirements in both the SLM and the GAO cited
report of March 2006 (GAO-06-375).
Recommendation 2: ICE's Office of the Principal Legal Advisor develop
documentation that clearly defines its methodology for conducting
workforce planning efforts, the personnel responsible for conducting
such efforts to enhance to enhance accountability, and its rationale
for making staffing decisions including any factors it considered in
making those decisions.
OPLA agrees in part with the recommendation. However, OPLA disagrees in
part with the conclusion that the traditional staffing ratio of
attorneys to immigration judges is neither based on comprehensive
workload data nor grounded in reliable workload data. The ratio was
developed within an analytical framework based on workload data of the
number of active cases, the number of cases received, and the time it
took to complete a case in immigration court. The report expresses
concern that there are factors that affect allocation of work based
upon the number and complexity of cases scheduled each day that are not
taken into account in the historic staffing ratio. Regardless of case
complexity, however, the time that a single immigration judge is
allotted to hear any number of cases within a given time frame is
finite. Of course, the historic formula does not address changes over
time in the volume and complexity of cases, which may require more time
to prepare and litigate. The attorney-to judge ratio has provided
staffing levels that are sufficient to accommodate the basic
requirements of client representation in immigration court. Continued
data collection will further quantify any need for additional resources
to address increased case complexity and the other demands placed on
ICE attorneys, in addition to their immigration work.
Future GEMS enhancements will allow OPLA to implement fully this GAO
recommendation. For instance, enhancements will permit time
expenditures to be captured and analyzed. Once the enhanced software is
functional and metrics are captured, members of OPLA's Lean Six Sigma
Group on Metrics, as well as its Knowledge Management Division and
Strategic Review Division (which will soon merge into a new division
called the Strategic Management Division), will analyze the data to
ensure that correct data for workload decision making is captured. At
first, the reviews will be more frequent to ensure that the software is
functioning properly and that users are properly trained. OPLA
anticipates this to be done on a weekly basis for the first six months,
and then on at least a monthly basis. OPLA leadership will receive
detailed reports on usage and data generated. Careful training and
frequent monitoring will ensure the integrity of data collected. Some
of the metrics used for future allocation of resources will include
further refinements of the types of cases litigated and their
locations. For example, based on measurements by locations, GEMS
enhancements will capture the number of hours each office needs to
spend on each type of case to achieve desired results compared to the
amount of attorneys on staff in an average workweek. This time
measurement will include the time expended preparing the case,
litigating the case in immigration court, writing any appeal briefs,
and assisting with any federal court litigation. Future GEMS
enhancements will compare how many hours each office is spending on
each type of case. By comparing the time spent on each type of case,
OPLA will be able to establish an average time-per-case. By capturing
these statistics, OPLA leadership will determine how many attorneys are
needed to handle the projected caseload in the various locations.
Recommendation 3: USCIS's Office of Chief Counsel document the office's
plans for implementing a workforce data management system that clearly
explains the goals of such an effort, major milestones, work tasks and
products and the associated schedules and resources for achieving them,
as well as performance measures and reporting mechanisms with the
effort.
USCIS agrees with the recommendation. USCIS's Office of the Chief
Counsel (USCIS-OCC) understands the need to document more fully the
implementation efforts of its workforce data management system: Time
Matters. USCIS-OCC intends to outline the major milestones associated
with the remaining implementation of Time Matters to include timeframes
for additional training and drafting and issuance of the Standard
Operating Procedure. They are aware that successful implementation of
Time Matters includes obtaining and reviewing performance measures of
the system as implementation efforts proceed, to include post
implementation assessments.
Recommendation 4: USCIS's Office of Chief Counsel develop documentation
that clearly describes its approach and the personnel responsible for
conducting workforce planning efforts related to (1) using workforce
data and other information related to time attorneys spend completing
their work activities to develop needs assessments and deploy staffing
resources where they are needed most, and (Z) identifying and
addressing staffing shortfalls to enhance accountability over staffing
decisions.
USCIS generally agrees with the recommendation. USCIS-OCC's workforce
planning efforts include the implementation of its data workforce
management system, Time Matters, to capture and measure the various
legal services provided by its attorney staff throughout the country.
Once this data is routinely captured through Time Matters, USCIS-OCC
management will have the capability of using the system to identify the
type and amount of workload each attorney and each office or division
is performing. Once workload is captured and identified, this data will
allow USCIS-OCC management to determine better the type and amount of
legal services requested by the client in a particular office or
region, as well as whether the number of staff attorneys assigned is
adequate to cover the legal needs of the agency client.
Recommendation 5: CBP's Office of Chief Counsel develop documentation
that clearly describes its criteria, methodology, analysis, data and
the personnel responsible for conducting workforce planning efforts
related to (1) using workforce data and other information related to
time attorneys spend completing their work activities to develop needs
assessments and deploy staffing resources where they are needed most,
and (2) anticipating or addressing staffing shortfalls to enhance
accountability over staffing decisions.
CBP Office of Chief Counsel (OCC) respectfully disagrees with the
recommendation of GAO for several reasons. First, GAO's report is
incorrect when it states that OCC's approach to determining its
staffing needs "has not been documented and no documentation exists for
validating CBP's attorney staffing decisions." OCC provided GAO with
workload data covering several years, by subject and office. The data
were compiled from the Chief Counsel Tracking System (CCTS), which the
report accurately describes as an automated system that maintains data
on legal matters handled by OCC. OCC also provided GAO with a copy of
the chapter in OCC's Attorney Practice Guide that explains in detail
the function and use of COTS. Second, OCC provided GAO with copies of
two internal memoranda, and related unfunded request forms, that
clearly describe and document in detail OCC's criteria, methodology,
analysis, data, and personnel responsible for assessing and deploying
staffing resources where and when needed most. Moreover, OCC provided
examples of the methodology OCC uses to anticipate and address staffing
shortfalls. These documents also demonstrate that OCC's staffing
decisions are not reduced to pure formula application. Rather, OCC also
relies on the professional judgment of its senior management to use the
data available to arrive at sound decisions regarding staffing
allocation.
While GAO's report is incorrect when it states that OCC's approach to
determining its staffing needs has not been documented, OCC readily
admits that it has not reduced every facet of its workforce planning
decision-making process to written policy. Indeed, OCC has not had a
need to do so. OCC respectfully disagrees that the workforce planning
documentation requirements of large organizations must be categorically
applied to a subordinate office of the small size and scale of OCC. GAO
cites the "need for such policies and procedures" as attributable to
GAO-02-373SP, an Exposure Draft of a document entitled "A Model of
Strategic Human Capital Management." While the principles articulated
in that model may be useful to managing the vast majority of large-
scale federal operations, OCC believes the principles of that model are
inapplicable to small offices as they are too broad to be applied to a
mission support office of the relatively small size of OCC. OCC
believes that its management and resource allocation methodology is
fairly standard for a legal office of its size and, as described in the
draft report, is consistent with the "key principles for effective
workforce planning" referenced on Page 1 I of the draft report. OCC has
not committed these straight-forward, common sense approaches to
written policies and procedures because it has not had need to do so.
While OCC's client, CBP, has 42,000-plus employees and quite reasonably
commits many policies and procedures to writing to manage such a large
workforce, OCC is an organization of approximately 200 people with a
small executive staff that communicates on a daily basis and readily
understands how the organization is managed. Moreover, as is noted on
Page 1 I of the report, GAO's "human capital guidance states that the
success of the workforce planning process that an agency uses can be
judged by its results - how well it helps the agency attain its mission
and strategic goals - not by the type of process used." OCC workforce
planning and resource allocation is driven by these results-oriented,
not process-oriented, considerations. As the GAO report states on Page
28, "CBP appears to be managing its attorney workforce planning needs
successfully." OCC believes the success of its office must be measured
not by process or paperwork but by results - the performance of its
mission to provide legal advice and representation to the CBP client
and its nationwide program offices. OCC believes that the work of its
office, and the prudence of its staffing allocation methodology, is
reflected in the satisfaction of CBP's program offices, from the
Commissioner to the field offices, with the legal services and
representation provided by OCC.
We have provided technical comments separately and believe that their
inclusion will enhance the accuracy of the report. Thank you again for
the opportunity to comment on this draft report.
Sincerely,
signed by:
Steven J. Pecinovsky:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Richard M. Stana (202) 512-8777:
Acknowledgments:
In addition to the contact named above, Debra B. Sebastian, Assistant
Director; Amy L. Bernstein; R. Rochelle Burns; Frances A. Cook;
Jennifer A. Gregory; Wilfred B. Holloway; and Paul G. Revesz made key
contributions to this report.
FOOTNOTES
[1] ICE attorneys also provide advice on administrative issues and
appear in administrative hearings before the U.S. Equal Employment
Opportunity Commission and the Merit Systems Protection Board. They
also respond to attorney grievances. In addition, selected ICE
attorneys serve as Special Assistant United States Attorneys in both
criminal and civil matters.
[2] A nonimmigrant is a person, not a citizen or national of the United
States, seeking to enter the United States temporarily for a specific
reason, such as business or pleasure.
[3] USCIS attorneys represent USCIS in administrative hearings before
the U.S. Equal Employment Opportunity Commission, the Merit Systems
Protection Board, the Federal Labor Relations Authority, and labor
arbitrators.
[4] The Department of Justice's Board of Immigration Appeals primarily
conducts appellate reviews of immigration judge decisions but also
hears appeals of certain decisions made by DHS district directors or
other immigration officials.
[5] CBP attorneys represent CBP in administrative hearings before the
U.S. Equal Employment Opportunity Commission, the Merit Systems
Protection Board, the Federal Labor Relations Authority, and labor
arbitrators.
[6] GAO, Executive Office for Immigration Review: Caseload Performance
Reporting Needs Improvement, GAO-06-771 (Washington, D.C.: Aug. 11,
2006).
[7] A shortfall is the difference between the number of attorneys an
agency is authorized and the number the agency determines it needs.
[8] We did not conduct a data reliability assessment of workload data
for CBP because documentation was not available to validate its
workforce planning process. In addition, we did not conduct a data
reliability assessment of workload data for USCIS because USCIS has not
yet fully implemented a system to generate comprehensive workload data.
[9] GAO, Human Capital: Key Principles for Effective Strategic
Workforce Planning, GAO-04-39 (Washington, D.C.: December 2003); GAO, A
Model of Strategic Human Capital Management, GAO-02-373SP (Washington,
D.C.: March 2002); GAO, Human Capital: A Self-Assessment Checklist for
Agency Leaders, GAO/OCG-00-14G (Washington, D.C.: September 2000); and
OPM, Strategic Human Resources Management: Aligning with the Mission,
(Washington, D.C.: September 1999).
[10] See GAO-02-373SP, p. 23.
[11] See GAO-02-373SP.
[12] Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135. Two other legacy agencies, the former U.S. Customs Service (USCS)
and the Department of Agriculture's Animal and Plant Health Inspection
Service, were also merged into DHS, and responsibility for their
customs investigations and enforcement and inspection functions were
transferred to ICE and CBP. However, these functions do not relate to
immigration.
[13] Prior to the merger, INS was part of the Department of Justice.
[14] The Office of General Counsel is responsible for directing the
activities of DHS's legal offices. However, DHS officials told us that
its Office of General Counsel does not play a role in determining the
component's attorney resource needs as part of the budget process.
[15] GAO, High-Risk Series: An Update, GAO-07-310 (Washington, D.C.:
January 2007), pp. 6, 39, and 45.
[16] See GAO-04-39, p. 2.
[17] See GAO-02-373SP, pp. 8-9.
[18] See GAO-04-39, pp. 2-3.
[19] OPM, Key Components of a Strategic Human Capital Plan (Washington,
D.C.: September 2005).
[20] See GAO/OCG-00-14G, p. 19.
[21] Officials from ICE's legal office said that the majority of their
attorneys litigate in immigration courts and provide advice to ICE
employees and that their staffing decisions related to these attorneys
are based on the ratio of attorneys to immigration judges. However,
they also told us that staffing decisions for headquarters attorneys
responsible for providing legal services related to ethics or
administrative law are conducted by establishing a ratio of attorneys
to ICE program clients. Officials from ICE's legal office said that
these attorney-to-client ratios are determined by reviewing workload
estimates and benchmarking those ratios with other executive branch
legal programs such as those at the Departments of Justice and
Treasury.
[22] When an appeal is filed related to an immigration judge's
decision, ICE attorneys are responsible for litigating the case before
the Board of Immigration Appeals.
[23] In its 2006 budget request, ICE's legal office reported that it
regularly provides advice to its field offices on customs-related
enforcement matters, including cargo search and seizure related issues.
[24] See GAO-02-373SP, p. 23.
[25] GAO, Near-Term Effort to Automate Paper-Based Immigration Files
Needs Planning Improvements, GAO-06-375 (Washington, D.C.: March 2006),
p. 14.
[26] GAO, Standards for Internal Control in the Federal Government,
GAO/AIMD-00-21.3 (Washington, D.C.: November 1999), p. 15.
[27] See GAO-02-373SP, p.25.
[28] See GAO/AIMD-00-21.3.1, p. 15
[29] See GAO-02-373SP, p.23.
[30] IBM, Detailed Organizational Assessment Briefing: Office of the
Chief Counsel, US Citizenship and Immigration Services, Department of
Homeland Security (March 2004).
[31] See GAO-06-375, p. 14.
[32] See GAO/AIMD-00-21.3.1, p. 15, and GAO-02-373SP, p. 25.
[33] The Chief Counsel Tracking System is an automated system that
maintains data on legal matters handled by CBP's legal office. The
Deputy Chief Counsel told us that, as a general rule, the legal
office's attorneys are responsible for opening cases in the Chief
Counsel Tracking System only if they take more than 30 minutes to
complete. The legal office's personnel can access this system to obtain
data on the status of a case or to obtain information about the
office's workload. Officials in the legal office told us that this
system has been in place for more than 20 years, as it was originally
maintained by the legacy agency, U.S. Customs Service, Office of Chief
Counsel, but that technology enhancements have been made over the
years.
[34] CBP's legal office's executive staff consists of the Chief
Counsel, Deputy Chief Counsel, three headquarters Associate Chief
Counsels and five Associate Chief Counsels in the field.
[35] See GAO-02-373SP, p.25.
[36] See GAO/AIMD-00-21.3.1, p. 20.
[37] See GAO-02-373SP.
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