CIS Ombudsman Issues Report in Wake of USCIS Snub

Posted on: July 2nd, 2015
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The CIS Ombudsman is charged with reviewing USCIS policies and procedures to identify areas where members of the public are having difficulty dealing with the agency. They are also required to offer proposed changes to mitigate problems. And they offer individualized case assistance to help resolve problems with USCIS. Congress mandates that the Ombudsman issue an annual report on its activities and the office publishes it each year in June. They’ve now released the 2015 report which can be found at http://www.dhs.gov/publication/cis-ombudsman-2015-annual-report-congress.

Despite the Ombudsman delivering its 2014 report nearly a year ago, USCIS only responded on June 9, 2015 and the Ombudsman was not able to evaluate USCIS’ responses for the new report. The Ombudsman’s office has to be polite in calling USCIS out on this. I don’t, however. This is UNACCEPTABLE. It’s a gross failure on USCIS’ part and the agency should be forced to offer a public explanation of its delinquency. USCIS usually ignores the Ombudsman’s recommendations anyway (which should be the subject of congressional hearings, in my view). But this stinks of stonewalling in order for the Ombudsman to not be in a position to cover this incredibly important subject in its annual report. 

The report is comprehensive – over 100 pages – and well worth reading in its entirety. Here are some things that caught my attention –

  • The Ombudsman worked 1,151 requests for case assistance in DACA matters including many where USCIS delays were causing serious hardships to applicants. According to the Ombudsman’s own surveying, 42% of timely filed cases had delayed EADs despite USCIS’ insisting it is getting most cases processed on time. The Ombudsman is urging USCIS to provide for automatic temporary extensions of employment authorization upon the timely receipt of a renewal application.
  • The Ombudsman is reporting numerous problems with I-601 Provisional Waiver applications. Cases are summarily being denied without adequate explanation of the deficiencies or Requests for Evidence are being issued that do not assess particular evidence provided by the applicant. USCIS is also not applying the extreme hardship standard consistently. The Ombudsman is requesting USCIS afford applicants the option to file Motions to Reopen/Reconsider or appeal denials.
  • The Ombudsman reports that it continues to receive reports of processing delays in H-2A and H-2B cases that are having severe economic consequences for petitioning US employers. One problem is the fact that three agencies – USCIS, the Department of State and the Department of Labor – are all involved. The Ombudsman recently set up an interagency working group to try and make the process more seamless. Another is that USCIS still is paper-based while DOL is using an electronic system. And while H-2Bs can get premium processing, H-2As cannot.
  • With respect to high-skilled adjudication, the Ombudsman has found a number of examples of Requests for Evidence that seek documentation previously provided, ask for irrelevant evidence, are excessive for what is needed to adjudicate or unduly intrusive. Also, the trend of issuing more RFEs continues unabated. The RFE rate on H-1Bs has doubled in the last nine years (from about 10% to over 20%) and on L-1As and L-1Bs from 10% to nearly 40%). The Ombudsman found that USCIS’ training of adjudicators in applying the preponderance of the evidence standard in L-1 cases is sorely lacking. In H-1B cases, USCIS examiners are misapplying the Department of Labor’s Occupational Outlook Handbook and claiming occupations are not specialty occupations if employers occasionally accept associates degrees (such as computer programming) even when a bachelors is stated in the OOH as being normally required. Also, USCIS examiners have denied cases where different types of bachelors degrees are acceptable arguing that if an occupation lacks a specifically tailored and titled degree program, it is not a specialty occupation. The Ombudsman criticized USCIS for making the Simeio H-1B case binding on employers without warning given the case was before the courts for four years. The new USCIS policy will cost employers millions in extra legal fees and filing costs. The Ombudsman is monitoring the roll out of the new L-1B memorandum from USCIS and how the agency is responding to feedback.
  • The Ombudsman is concerned that Motions to Reopen and AAO appeals of high skilled worker cases are too slow and the 10% reversal rate is discouraging legitimate appeals and motions. The public needs to be made confident that the appeals process is “fair, meaningful, and timely”.
  • EB-5 cases are taking too long to adjudicate. 20% of I-526 petitions are taking longer than a year and processing times are getting longer. USCIS is also not engaging in a real dialog with stakeholders. Merely having listening sessions or taking basic questions and answers is not adequate.
  • The Ombudsman has data revealing the USCIS misses its 90-day deadline in adjudicating I-765 Applications for Employment Authorization on a seasonal basis with more problems happening in the summer months. The Ombudsman is offering USCIS suggestions to address seasonal employment authorization processing delays.
  • The Ombudsman is encouraging USCIS to recognize legal standing for certain I-140 beneficiaries to have standing to appeal I-140 decisions.
  • The Ombudsman is continuing to receive reports of difficulties with pending or recently adjudicated Special Immigrant Juvenile (SIJ) cases. They are recommending centralizing SIJ cases and updating regulations to clarify policy guidance and the limits of USCIS’s consent authority.
  • Affirmative asylum applications are taking longer to adjudicate largely as a result of more cases being filed and resources being diverted to credible fear screenings at ports of entry. USCIS has taken steps to try and address, but have been unable to reverse the trend.
  • USCIS has statutory and regulatory authority to continue family petitions for people when the original petitioner dies. But the Ombudsman has received reports of variances and long delays in handling reinstatement requests, incorrect rejections of reinstatement requests in service center mailrooms, template denials and confusion over the law.
  • USCIS sends out millions of documents via the US Postal Service and when time sensitive notices are not received, people may miss acting in a timely manner and facing the denial of an application for abandonment. Also, not receiving key documents like EADs, Travel Documents and Green Cards can cause serious problems for individuals.
  • The Ombudsman has received numerous accounts of Forms G-28 being submitted to bring an attorney in to the process after an application has been filed but not being properly recorded. Also, attorneys requesting to be withdrawn are reporting not being removed from their cases. USCIS has yet to implement procedures to address the problems.
  • The Ombudsman has raised with USCIS an ongoing problem of reported processing times not reflecting reality.

The report provides details on the Ombudsman’s operations. The office now has 25 full-time employees and the number of case assistance requests has risen from 3,247 in 2011 to 7,555 in the latest year. These are requests received after an applicant has exhausted using the USCIS customer service options. 20% of case assistance requests are for DACA applicants. Typically, the case requests relate to the following:

  • expediting cases
  • reopening improper denials (mainly provisional waivers and improper legal interpretations)
  • dealing with administrative and procedural problems (such as mailing issues and change of address problems)

The Ombudsman held six teleconferences as well as its fourth in person annual conference. And the office is focused on improving interagency cooperation and has set up regular meetings between the various agencies on a range of issues.

What concerns me is that USCIS will simply throw this report in the garbage. Will we need to wait two years to find out how USCIS reacted to these recommendations as well?