CIS Ombudsman Releases 2015 Annual Report

Maria M. Odom, the Citizenship and Immigration Services Ombudsman (CIS Ombudsman), has submitted her office’s 2015 Annual Report to Congress. This annual report includes lists of problems within the immigration system identified by the CIS Ombudsman’s office, as well as recommended solutions.

Background on the CIS Ombudsman

The main role of the CIS Ombudsman is to identify areas within U.S. Citizenship and Immigration Services (USCIS) operations or adjudications that need improvement and provide recommendations in an annual report that is provided to the U.S. Congress. The CIS Ombudsman is also authorized to intervene and provide individual assistance in USCIS cases if other, standard avenues have failed. As explained in the 2015 Annual Report, the CIS Ombudsman is responsible for “…assisting individuals and employers with problems with USCIS both through case assistance and policy recommendations.” See the MurthyDotCom NewsBrief, Ombudsman’s Office Works to Improve the USCIS and Assist the Public (29.May.2014) for more details regarding the role of this office.

Overview of the Ombudsman’s 2015 Annual Report

During the reporting period, which ran from April 1, 2014 to March 31, 2015, the CIS Ombudsman received 7,555 requests for assistance from the public on matters involving the USCIS. This is an increase of more than 23 percent from the previous year. Of these requests, 38 percent were related to humanitarian-based cases, 23 percent for family-based cases, 24 percent for employment-based cases, and 15 percent for general immigration matters. The largest sources of requests – 15 percent – involved the Deferred Action for Childhood Arrivals (DACA) program, followed by queries related to applications for employment authorization documents (EADs), which made up about 12 percent of the CIS Ombudsman’s total casework in 2015. Other high volume areas included I-130 petitions for alien relatives and requests relating to I-485 applications to register permanent residence or adjust status.

Employment-Based Cases with Burdensome RFEs

As with reports from previous years, the 2015 Annual Report noted a number of concerns related to employment-based cases. Stakeholders raised issues regarding USCIS adjudications of nonimmigrant petitions in various categories, including H1B, L1A, L1B, and O-1. Of particular concern were the nature and content of requests for evidence (RFEs) issued in many of these cases. A significant portion of these appeared to be redundant, commonly seeking information that was irrelevant or previously submitted to the USCIS.

EAD Delays Common During Summer

The USCIS received 1,477,898 applications for EADs during this last reporting period. The vast majority of these applications were processed within the required 90-day processing period. However, thousands of EAD applicants had to contend with delays. The CIS Ombudsman tracked the pattern of these adjudication delays and found that they were seasonal in nature, with increases in requests for help each summer.

Beneficiary’s Role in I-140 Employer Petitions

The CIS Ombudsman noted that, because of visa number limitations, the USCIS had an extensive backlog of I-485 applications that were based on approved I-140 petitions. The CIS Ombudsman recommended that the USCIS maintain clear and consistent communication with stakeholders on the issue of the role and legal standing of foreign national beneficiaries with regard to I-140 matters.

The USCIS is in the process of reconsidering existing policies that exclude beneficiaries from responding to inquiries related to I-140s. This is discussed in the MurthyDotCom NewsBrief, AAO to Consider Individuals’ Rights in AC21 Cases (16.Apr.2015).

Delays in Processing EB5 Investment Petitions

The annual report notes that the USCIS made efforts to improve the EB5 investor visa program, most notably by hiring new adjudicators and economists. Despite these additional efforts, the USCIS had a pending inventory of more than 12,000 EB5 petitions, including some 20 percent that had remained pending for over a year. The increase in EB5 processing times is largely the result of the growing popularity of the EB5 program.

Ombudsman’s Particular Concern with L1B Denials

The report reflects the need for changes in the way that the USCIS adjudicates L1B petitions, as the RFE rate for L1B cases reached nearly 50 percent in fiscal year 2014. In the same year, the denial rates reached 35 percent, and there was “…an aggregate L1B denial rate for beneficiaries of Indian origin of 56 percent in the 5-year period of 2012 through 2014.” The CIS Ombudsman also found it “troubling” that the denial rate for L1B extension petitions was 41 percent – higher than the 32 percent denial rate for initial L1B filings. The report then goes on to note, “The extension denial rates confirm stakeholder concerns regarding the quality and consistency of L1B adjudications.”

The CIS Ombudsman did note that the USCIS issued an L1B draft policy memo in March that is in the process of being finalized following a public comment period. It remains to be seen what, precisely, the final memo will contain and whether this may improve the adjudication process for L1B cases. Accordingly, the CIS Ombudsman is “withhold[ing] further comment on the new policy memorandum and discussion of possible or actual impacts until after the memorandum becomes final.”

Conclusion

The Murthy Law Firm appreciates efforts being made by the CIS Ombudsman to improve the U.S. immigration system. MurthyDotCom will provide updates if and when these changes are implemented by the USCIS.

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