Ombudsman: USCIS Processes Burdensome for Employers

By Roy Maurer Jul 16, 2015
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The Citizenship and Immigration Services Ombudsman Annual Report 2015 reveals that longstanding challenges submitting petitions to U.S. Citizenship and Immigration Services (USCIS) still exist.

“Requests for evidence [RFEs] that are too often vague, unduly burdensome or unnecessary … continue to delay adjudications and burden applicants and petitioners, particularly in … key employment-based categories,” said Citizenship and Immigration Services Ombudsman Maria Odom in the report. “Providing adequate notice regarding filing deficiencies is essential to the effectiveness of RFEs, but they are often general and fail to address evidence already in the record. This is especially important in cases in which customers are not afforded the option of an appeal or a motion to reopen or reconsider,” she said.

The Ombudsman is an independent, impartial office that reports directly to the Department of Homeland Security deputy secretary and works to improve the delivery of immigration benefits and services. The Ombudsman’s Annual Report is a summary of the most pervasive and serious problems encountered by individuals and employers seeking immigration-related benefits from USCIS.

“As always, the Ombudsman’s office did a tremendous job of summarizing the key challenges our immigration system faces,” said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. “In the employment-based immigration area in particular, they did a great job highlighting the ongoing challenges employers face with RFEs, which delay access to talent for key positions and reduce the predictability employers need.”

More Requests for Assistance

From April 1, 2014, to March 31, 2015, the Ombudsman received 7,555 requests for case assistance, an increase of over 23 percent from the 2014 reporting period. Twenty-four percent of that total was for employment-related issues, about the same as last year.

The largest chunk of assistance requests (15 percent) involved processing times for Deferred Action for Childhood Arrivals (DACA) renewal adjudications, followed by employment authorization inquiries not related to DACA (12 percent).

Odom acknowledged that the planning, implementation and litigation around President Barack Obama’s executive actions announced in November 2014 have dominated USCIS’ attention for much of the reporting period. The agency published a final rule in February 2015 extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B visa holders seeking employment-based green cards. That rule became effective on May 26, 2015. Additionally, in March 2015, USCIS published draft guidance on L-1B specialized knowledge, with a target effective date of Aug. 31, 2015.

RFEs Remain at Historic Highs

Even after USCIS issued numerous policy memoranda and agency initiatives to curb these concerns, RFE rates in the H-1B and L-1 categories remain at or near historic highs, according to the report. The RFE rate on H-1Bs has doubled in the last nine years from about 10 percent to over 20 percent and on L-1As and L-1Bs from 10 percent to nearly 40 and 50 percent respectively.

The report points to a huge disparity between the rates of RFEs and the amount that are ultimately denied, Storch said. Despite an RFE rate over 20 percent for H-1Bs, 96.5 percent are ultimately approved. L-1As see an RFE rate over 40 percent, but 80.3 percent are approved; L-1Bs log a 50 percent RFE rate, while 70.9 percent are approved, he said.

“The disparity between RFE rates and denial rates is due in large part to RFEs that request documentation that is far beyond what is required for the benefit request or, way too often, documentation that was already provided in the initial filing,” according to Storch. “USCIS needs to ensure that adjudicators are properly trained and that supervisors review RFEs before they are issued. For L-1Bs in particular, we hope that the final guidance forthcoming by USCIS will clearly articulate the adjudications policy in a fair way that will reduce RFEs.”

The Ombudsman in 2010 formally recommended that USCIS implement new training for adjudicators on understanding and applying the “preponderance of the evidence” standard in adjudications; start a pilot program requiring 100 percent supervisory RFE review of one or more product lines; and create an internal checklist for completion prior to issuing an RFE.

USCIS began using new training materials for adjudicators on the preponderance of evidence legal standard in 2012. After reviewing the materials, the Ombudsman stated that while they are an improvement, “they could be made more useful.”

Specifically, preponderance of evidence training should include actual redacted examples from petitions, Odom said. “Examples of cases that are clearly approvable, clearly deniable and those warranting the issuance of an RFE should be presented and discussed, and can be used to train adjudicators to identify any missing elements needed to complete the adjudication,” she said.

Odom also continues to urge the agency to pilot a supervisory review initiative. She suggested that USCIS could select the L-1B for the pilot, as the annual volume of filings is relatively small. “Although the pilot may cause a temporary increase in processing times, it will enhance a culture in which adjudicators carefully consider whether an RFE is needed before seeking supervisory review. Ultimately, this will help reduce the number of RFEs that are issued, and in the end, shorten processing times,” she said.

Ongoing Issues

The report outlined several additional problem areas in need of improvement, including:

  • Employment authorization processing delays. While the agency adjudicates the majority of the 1.5 million employment authorization applications within the 90-day processing timeframe every year, thousands of eligible individuals encounter processing delays, leading to adverse consequences for applicants and employers. “This is a serious problem, leaving foreign nationals without valid work authorization despite doing everything they were supposed to do,” Storch said.
  • Processing delays in both the H-2A agricultural temporary worker and H-2B nonagricultural temporary worker programs. Odom said she was concerned about the administration of the programs, especially the lack of coordination among the three agencies—the Department of Labor (DOL), Department of State and USCIS—which administer it. To explore areas of collaboration in the H-2 programs, the Ombudsman convened an interagency working group in May 2014. The group has discussed a variety of topics including interagency information sharing and mailing issues.
  • Erroneous decisions based on the DOL’s Occupational Outlook Handbook. USCIS adjudicators use the handbook when evaluating whether a position offered to a foreign worker qualifies as a specialty occupation. “During this reporting period and in past years, stakeholders have presented the Ombudsman with H-1B decisions in which USCIS appears to misread or misapply the [handbook],” Odom said.
  • Untimely appeals process. USCIS provides a formal administrative appeals process for employers and applicants to seek review of agency decisions. While the process has been reduced to six months or less, “a delay of months in reversing an incorrect agency decision can have significant adverse impacts on both the sponsoring employer and the beneficiary,” Odom said. Appeals are successful in less than 10 percent of cases, according to the report, leading “employers to make calculated business decisions whether to abandon their efforts to hire beneficiaries, or file anew under the plausible theory that another adjudicator will issue an approval for the same case with the same documentation,” Odom said. Until employers feel confident that the agency’s administrative appeals process will be fair, meaningful and timely, this process may remain underutilized, she added.
  • Undelivered or misdelivered notices and documents. USCIS sends out millions of documents via the U.S. Postal Service including employment authorization documents, travel documents and green cards, which when not received, may cause serious problems for individuals. The Ombudsman’s office encourages USCIS to expand delivery service using pre-paid mailing labels provided by customers and to consider the use of delivery with signature confirmation.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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