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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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