Watchdog Cites Processing Delays, Disparities at USCIS

By Roy Maurer Aug 11, 2016
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U.S. Citizenship and Immigration Services (USCIS) frustrates employers with processing delays, inconsistent adjudications and many requests for evidence, according to the federal office charged with improving the delivery of immigration benefits and services.

The Citizenship and Immigration Services (CIS) Ombudsman's 2016 Report to Congress calls on USCIS to develop and implement a process to accurately predict processing times, allocate more resources to processing employment authorization documents and institute supervisor review for evidence requests, among other recommendations.

CIS Ombudsman Maria Odom said in the report that the agency has made insufficient progress to address:

  • Delays in processing time.
  • Disparities in adjudications across service centers.
  • Lapses in meeting the 90-day regulatory deadline for employment authorization documents.
  • Continued issuance of "overly burdensome and unnecessary requests for evidence."

The ombudsman's report tracks closely with the findings from the Visanow Immigration Trends 2016 survey, which found that almost half of respondents say their company's visa application process has become more difficult in the past five years, due to what they say is an uptick in requests for evidence, slow processing times and lack of transparency.

"Companies consistently tell us that lengthy processing times impede their ability to leverage both inbound and outbound international talent in order to meet company objectives and achieve long-term success," said Sarah Maxwell, head of global immigration at Visanow, a Chicago-based immigration services provider.  

Lengthy Processing Times 'Serious and Pervasive'

Odom urged USCIS to "undertake concrete and holistic measures to address lengthening processing times as a serious and pervasive issue," calling it "perhaps the most important operational issue facing the agency today."

Over the last three years, the ombudsman's office has seen increases in requests for assistance to address USCIS processing delays. In fiscal year (FY) 2015, the percentage of requests for case assistance involving filings beyond posted processing times increased to 61 percent of all cases filed—up 3 percent from 2014—and spanned most product lines. During the first two quarters of FY 2016, the ombudsman received 2,965 requests for case assistance beyond posted processing times out of 4,740 cases filed, or a rate of almost 63 percent.

"The manner in which processing times are determined and presented is confusing, and the delays between calculation and posting leave considerable room to doubt their accuracy," Odom said. "More importantly, however, posted processing times now exceed certain mandates set out in statute and regulations, or are beyond internal processing goals."

For example, the national average processing time for the Form I-485 (Application to Register Permanent Residence or Adjust Status) is at 6.9 months, exceeding the goal of four months. In its recent proposed rule to increase fees, USCIS acknowledged that processing times have increased, resulting in backlogs that prevent the agency from meeting its goals.

Beth Carlson, an immigration attorney and counsel in the Minneapolis office of Faegre Baker Daniels, said lengthy processing times at USCIS create hardships for both employers and workers.

A prime example is the extraordinary delay in processing H-1B extension petitions. USCIS charges a $1,225 premium processing filing fee. Employers typically try to file their petitions early to avoid this fee, Carlson said, but are often forced to upgrade the petitions and pay the fee because of an eight- to nine-month backlog in H-1B extension cases. Odom noted that employers are increasingly using the 15-day premium processing option—and paying the $1,225 fee—when available, to gain some level of certainty that USCIS will process their petition in a timely manner.

Thousands of foreign nationals seeking new or renewed Form I-765 employment authorization documents (EADs) also continue to face long waits despite the efforts of USCIS to address the problem.

In FY 2015, 2 million EAD applications were filed with the agency. Nearly one-quarter of those (449,307 filings) missed the 90-day deadline for adjudication. Foreign nationals must have a valid EAD to hold a job. Lapsed documents can lead to business interruption for employers and financial hardship for workers.

"On the employer side, they need and want the worker to continue in their employment and sometimes need to backfill quickly with other workers to cover for an employee whose work authorization is expiring and does not yet have the new card," Carlson said. "Employers also need to weigh terminating the employee or placing him or her on an unpaid leave of absence when the worker cannot work. The worker and the worker's family also are placed in a tenuous situation since the employee cannot work and be paid if [he or she doesn't have] the renewal EAD card in time."

Disparity Between Service Centers Grows

USCIS continues to issue a significantly high number of requests for evidence (RFEs), particularly for L-1A Intracompany Transferee Managers and Executives and L-1B Specialized Knowledge Worker cases, according to the report. Inexplicable processing disparities between the agency's service centers add to employers' dissatisfaction.

For example, the percentage of L-1A cases flagged for an RFE at the California Service Center grew to 55 percent of the total filings for that product in FY 2015, its highest level in 20 years, while in the same period, the percentage of RFEs issued at the Vermont Service Center dropped dramatically from a high of 44.6 percent in FY 2014, to 29 percent in FY 2015.

"It is unclear why L-1A RFE rates differ so significantly between service centers," Odom said.

She called for more transparency regarding RFE rates, enhanced training for adjudicators on the preponderance of the evidence standard, and supervisory review prior to issuance.

Employers and immigration practitioners welcome the proposed solutions for more training and guidance, Carlson said. "The issuance of RFEs on cases that are straightforward under the regulations and [that] should be approved under the preponderance of the evidence standard is costly and only leads to further delay when delays in case processing and adjudication is already an issue with USCIS."

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