Ombudsman’s 2014 Report Addresses Concerns with USCIS24 Jul 2014
The Citizenship and Immigration Services Ombudsman (CIS Ombudsman) 2014 Annual Report was submitted to Congress on June 27, 2014. The report details various deficiencies found within the U.S. Citizenship and Immigration Services (USCIS), according to the Ombudsman’s office, including problems with H1B and L-1 processing and the overuse of requests for evidence (RFEs). The report also discusses some of the improvements made by the USCIS, such as taking strides to streamline the EB5 investor visa program.
Purpose of Ombudsman’s Office
The Ombudsman’s office is responsible for making recommendations to Congress on ways to improve the USCIS, and has the ability to liaise with the USCIS on behalf of petitioners and applicants who have encountered problems with their respective cases. The role and duties performed by the CIS Ombudsman, Maria M. Odom, and her staff were described in the MurthyDotCom NewsBrief, Ombudsman’s Office Works to Improve the USCIS and Assist the Public (29.May.2014).
Five Systemic Issues with USCIS
In this year’s annual report, the CIS Ombudsman identifies five systemic shortcomings within the USCIS that should be addressed. They include:
- USCIS processing times
- USCIS responses to service requests submitted through the Service Request Management Tool
- USCIS policy and practice in accepting G-28 forms, notice of entry of appearance as attorney or accredited representative
- Challenges in the process for payment of the immigrant visa fee using the online Electronic Immigration System (ELIS)
- Special immigrant juvenile adjudications
Longstanding H1B and L-1 Difficulties
The report discusses ongoing problems with H1B and L-1 adjudications and related USCIS policies. One concern raised by the CIS Ombudsman is the quality and consistency of H1B and L-1 adjudications. These concerns include a finding of instances in which USCIS officers were applying a higher standard of evidence than the preponderance of the evidence (or, “more likely than not”) standard that is appropriate for these types of cases.
Increase in L-1 RFEs, Denials
Data examined by the CIS Ombudsman also showed that the USCIS issued RFEs on nearly half of all L1B petitions and almost 43 percent of L1A petitions filed during the first half of fiscal year 2014. Another ongoing concern is the rate of L1B denials, which stood at 20 percent in 2010, but now have ballooned to 40 percent at the California Service Center (CSC) and 32 percent at the Vermont Service Center (VSC). While the USCIS issued additional guidance for adjudication of H1B petitions in 2010, as discussed in the MurthyDotCom NewsBrief, 2010 AILA Annual Conference: Overview of Hot Topics (9.Jul.2010), policy guidance on L-1 cases has been drafted but remains under review and has not been approved and released for use in adjudications.
CIS Ombudsman’s Recommendations to the USCIS
The CIS Ombudsman made recommendations in 2010 to remedy the inconsistency in H1B and L-1 adjudications and to correct the common mistakes made regarding USCIS misapplication of the standard of evidence. The USCIS agreed with these recommendations and developed training materials that were finalized in late 2012 and now account for four hours of the overall training that USCIS adjudicators receive. The ombudsman recommends further training to include hypothetical examples, focusing on the proper application of the preponderance of the evidence legal standard. The Ombudsman also recommends regular refresher courses covering this concept as reinforcement for veteran USCIS adjudicators.
The report notes the difficulty in discovering the cause for the high levels of L1B RFEs and denials. The Ombudsman postulates that it stems from gaps in policy regarding the definition of specialized knowledge, an essential element of the L1B category. This lack of clarity causes employers to struggle in determining what is expected, and adjudicators to adjudicate cases in a highly inconsistent manner.
Ombudsman’s Accomplishments: EB5 Investment Petitions
The annual report notes that the USCIS has made changes and refinements to the EB5 investor program. Most notably, EB5 adjudications were relocated from the CSC to the newly formed Immigrant Investor Program Office (IPO) in Washington D.C. The USCIS also issued comprehensive EB5 policy guidance in 2013, as detailed in the MurthyDotCom NewsBrief, USCIS Releases EB5 Investor Policy Memo (18.Jun.2013).
One ongoing concern is the long processing times for EB5 adjudications, which the USCIS has stated is related to the transition of EB5 operations from California to Washington D.C. Processing times are expected to get even worse through the end of the 2014 calendar year, while the USCIS continues training some 100 new EB5 adjudicators, economists, and staff. Once that training is complete, however, and the IPO is fully staffed, processing times and program integrity are expected to improve.
The oversight provided by the CIS Ombudsman is an important tool to ensure the USCIS remains responsive to the needs of stakeholders. MurthyDotCom tracks and reports issues raised by the Ombudsman’s office, as well as actions taken by the USCIS to address the purported deficiencies.
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