CIS Ombudsman in the United States

The Office of the Citizenship and Immigration Services Ombudsman (Ombudsman) is dedicated to improving the quality of citizenship and immigration services delivered to the public by providing individual case assistance, as well as making recommendations to improve the administration of immigration benefits by U.S. Citizenship and Immigration Services (USCIS).

Created by section 452 of the Homeland Security Act of 2002, the Ombudsman is an impartial and confidential resource that is independent of USCIS.

From the CIS Ombudsman Annual Report (June 2016) to the Congress:

“Our immigration system has evolved in impressive ways,
with USCIS rising to meet national security and fraud
detection challenges, engaging effectively through local
field offices, and, most recently, working to address
the unprecedented credible fear and affirmative asylum
backlogs. At the same time, the agency has allocated
vast resources to refugee processing in the Middle East
and to the critical national security activities involved
in that effort. USCIS also created the Central American
Minors program to offer much-needed safe passage to the
United States to children from El Salvador, Guatemala,
and Honduras. Over the past 5 years, USCIS has also
planned for and delivered on essential executive action
solutions in the absence of comprehensive immigration
reform. (As we finalized this Report, the U.S. Supreme Court issued its decision in
U.S. v. Texas, 579 U.S. ___ (June 23, 2016), leaving the court of appeals ruling
in place and prohibiting implementation by U.S. Department of Homeland
Security of the Deferred Action for Parents of American and Lawful
Permanent Residents program (DAPA) and the expansion of the Deferred
Action For Childhood Arrivals (DACA) program. The current DACA policy,
however, remains in place).

Throughout that time, the agency has been
responsive to Congressional oversight, with hearings
focused lately on refugee processing, executive actions, the
use of social media, and alleged fraud among prospective
immigrant investors.

USCIS, however, still has much work to do to resolve
longstanding systemic issues that compromise efficiency,
quality of adjudications, and customer service. As a former
Immigration and Naturalization Service counsel, seasoned
immigration practitioner, and now as the Ombudsman,
I have seen the detrimental impacts of inadequate
customer service, delays in processing times, inconsistent
adjudications, and ineffective policymaking. These are
meaningful problems and should be treated as such.
With a myriad of competing priorities, the agency has made
insufficient progress to address processing times delays
(critically on the rise in the past 2 years); inconsistencies
in adjudications across service centers; substantial failure
to meet the 90-day regulatory adjudication deadline for
employment authorization documents; and the continued
issuance of overly burdensome and unnecessary requests
for evidence. I believe USCIS will achieve its full potential
as a 21st century immigration agency when its customer
service and adjudicatory functions are consistently
prioritized, resourced, and afforded equal oversight.
Consequently, as problems persist, the Ombudsman plays
an important, independent role in ensuring that USCIS
is responsive to its customers. At the Ombudsman’s
office, we work tirelessly to achieve the mission by
providing expert case assistance to the public and by
monitoring trends that reflect the existence and emergence
of serious and pervasive issues within the agency. We
formulate recommendations to USCIS—both formally
and informally—to resolve those problems, and report to
Congress areas where the agency still needs to improve. (…)

Ombudsman’s Office Overview

In the 2016 reporting period (April 1, 2015 to March 31,
2016), the Ombudsman received 9,448 requests for case
assistance, a 25 percent increase from the 2015 reporting
period. Overall, 29 percent of the requests were for
employment-based matters; 28 percent for humanitarianbased
matters; 23 percent for family-based matters; and
20 percent for general immigration matters, such as
applications for naturalization. Notably, the Ombudsman
received 1,288 requests for case assistance involving
applications for employment authorization—a 42 percent
increase from the prior reporting period.

The Year in Outreach

The Ombudsman conducted over 121 stakeholder
engagements in the reporting period, reaching a diverse
multitude of stakeholders in regions across the United
States. The Ombudsman also created a social media
presence through Facebook in November 2015. To inform
stakeholders of new initiatives and receive feedback on
a variety of topics and policy trends, the Ombudsman
hosted nine public teleconferences and held a Fifth Annual
Conference, featuring Secretary of Homeland Security
Jeh Johnson as keynote speaker as well as an “armchair”
discussion with USCIS Director León Rodríguez.

DHS Blue Campaign

As Chair of the Blue Campaign Steering Committee (Blue
Campaign), the Department’s unified voice for combatting
human trafficking, Ombudsman Odom is at the forefront of
these efforts. The Blue Campaign brings together resources
and expertise from across DHS Components, harnessing
partnerships with a network of other governmental and
non-governmental organizations. The Ombudsman
strengthens these initiatives by providing ongoing subject
matter expertise and organizing stakeholder events and
trainings addressing pressing trafficking issues. The
Ombudsman also provides case assistance to individuals
seeking to resolve problems with applications and petitions
for humanitarian immigration relief, including immigrant
victims of trafficking.

Key Developments and Areas of Focus:

Humanitarian Asylum Backlogs and Continuing Assessment of Problems

The volume of affirmative asylum cases pending at USCIS
has reached well over 100,000 and continues to grow.
Sustained surges in high-priority credible and reasonable
fear claims and a boom in new affirmative asylum filings
drive this backlog. Despite significant efforts by the
Refugee, Asylum and International Operations Directorate’s
Asylum Division to respond to this pending caseload,
such as doubling the Asylum Officer corps, the backlog
of cases and processing delays continues to expand.
The Ombudsman encourages USCIS to provide greater
transparency surrounding the backlog, and is committed
to exploring additional ways to efficiently respond to
worsening processing delays and promote measures to ease
the hardships stemming from these delays.

Central American Minors Refugee/Parole Program

The Ombudsman has conducted extensive engagement
with stakeholders and government officials in the United
States and abroad in connection with the Central American
Minors (CAM) Refugee/Parole program. During the
Ombudsman’s recent trip to Mexico, El Salvador, and
Guatemala, the Ombudsman met with foreign governments,
USCIS and DOS officials, humanitarian organizations,
and at-risk youth, as well as observed Resettlement Support Center pre-screenings and USCIS interviews of
CAM applicants. The Ombudsman anticipates issuing
an assessment and recommendations pertaining to the
program’s operational structure and effectiveness under
current eligibility requirements. Stakeholders have
reported and the Ombudsman has observed a number of
shortcomings with the CAM program, including lengthy
processing times; lack of standardized expedite procedures,
safety protocols, and dedicated funding; narrow eligibility
criteria; prohibitive upfront costs for DNA testing;
and limited means for expanding public awareness of
the program.

The Haitian Family Reunification Parole Program

Stakeholders have expressed concerns too few Haitians
are eligible for the program and face obstacles impeding
realization of the program’s goals, namely receipt of the
invitation to apply for the program and prohibitive filing
fees. The Ombudsman has monitored the program’s
implementation and conducted engagement with the
Haitian Family Reunification Parole Program (HFRP)
stakeholders during the reporting period. As of December
31, 2015, USCIS had only adjudicated 590 applications
of the 3,789 pending applications. The Ombudsman will
continue to track HFRP’s progress and explore potential
measures to strengthen the number of beneficiaries
benefitting from the program, including allowing
beneficiaries with later priority dates to qualify and
increasing outreach in both the United States and Haiti.
The Deferred Action for Childhood Arrivals Program
Since implementation late 2012, the Deferred Action
for Childhood Arrivals (DACA) program has allowed
approximately 723,282 recipients to live and work in the
United States without fear of removal. The Ombudsman
continues to recommend USCIS offer the option of a
substantive review of denials based on grounds other than
the administrative errors listed in the DACA FAQs. A
number of requests for case assistance also revealed DACA
recipients unknowingly traveled outside the United States
after receiving approved advance parole documents, but
before the effective date or “date issued.” The Ombudsman
proposes clarifying the “permissible period” for travel
to ensure DACA grantees understand the importance of
these dates.

Provisional Waivers

On July 22, 2015, USCIS published a proposed rule
expanding the Provisional Waiver program to allow all
individuals statutorily eligible for the unlawful presence
waiver, who can establish extreme hardship to any
qualifying relative, to participate in the program. On
October 7, 2015, USCIS issued draft guidance pertaining
to the “extreme hardship” standard for public comment.
The Ombudsman welcomes the proposed regulatory
amendments and much needed draft policy guidance. The
Ombudsman also continues to urge USCIS to offer the
option of a substantive review of provisional waiver denials
essential to achieving full program integrity.

Special Immigrant Juveniles

For more than 25 years, the Special Immigrant Juvenile
(SIJ) program has protected vulnerable youth in this
country who cannot be reunified with one or both parents
as a result of abuse, neglect, abandonment, or a similar
basis under state law. Congress has entrusted state courts to
make these determinations while acknowledging only DHS
can issue immigration benefits. On December 11, 2015,
the Ombudsman issued a second formal recommendation
on the SIJ program, addressing a number of questionable
practices by USCIS, including the re-evaluation of state
court orders; burdensome requests for evidence; and
interviews that are not age-appropriate. In response,
USCIS has assured it will take some steps to address these
concerns; the Ombudsman will continue monitoring the
program improvements promised. The Ombudsman is also
particularly concerned with the significant retrogression
of SIJ visa numbers (EB-4 category) announced in the
May 2016 Visa Bulletin for applicants from El Salvador,
Guatemala, and Honduras and will continue to engage
with the agency and stakeholders regarding the problems
emanating from retrogression. (…)

Business and Employment: Employment-Based Immigrant Petitions

During the reporting period, USCIS has taken a number
of steps to implement the President’s Immigration
Accountability Executive Action for businesses
and immigrant workers. On November 20, 2015,
the agency published the draft policy memorandum
Determining Whether a New Job is in “the Same or
a Similar Occupational Classification” for Purposes
of Section 204(j) Job Portability; and a Notice of
Proposed Rulemaking (NPRM) on December 31,
2015, to implement certain provisions of the American
Competitiveness in the Twenty-First Century Act of
2000 (AC21). USCIS has still not changed its position
that foreign worker beneficiaries lack legal standing in
the petition process despite mounting case law to the
contrary. USCIS must reconsider its position on Form
I-140, Immigrant Petition for Alien Worker employee
standing and make a corresponding regulatory change,
fully aligning its policy to the letter and spirit of AC21 to
provide certain qualified employees greater employment
mobility while awaiting the completion of the permanent
residence process.

Business and Employment: EB-5 Immigrant Investor Program

As reported in past years, processing times for EB-5
petitions continue to degrade. Stakeholders shared
concerns regarding USCIS’ Investor Program Office’s
(IPO) regulatory authority to administer the program;
outdated regulatory requirements; program integrity in
light of allegations and findings of fraud or noncompliance
with other federal laws; the manipulation of Targeted
Employment Areas through gerrymandering; and the
inconsistent implementation of policy. The Ombudsman
will monitor regulatory and statutory changes to the
program initiated by IPO and Congress, and will continue
to address stakeholders concerns with the quality,
consistency, and timeliness of IPO’s adjudication of EB-5
applications and petitions.

Business and Employment: H-2 Temporary Workers and Labor Trafficking

During the reporting period, the Ombudsman heard from
workers’ rights organizations regarding the vulnerabilities
and exploitation of H-2 workers sponsored by U.S.
employers. Exploitation takes the form of involuntary
servitude or forced labor, and can result in other
workplace-based crimes. During this reporting period,
the Ombudsman participated in interagency activities
to address stakeholder concerns, and worked to resolve
requests for case assistance by workers encountering
challenges in their pursuit of protective immigration
benefits. The Ombudsman will continue to explore ways
USCIS can collaborate with federal agency partners to
address employee exploitation and human trafficking,
and will convene DHS representatives to discuss how to
enhance protections within the Department’s authorities.

Business and Employment: H-2B Temporary Non-Agricultural Workers

Stakeholders continue to assert the H-2 program is overly
regulated and bureaucratic, causing significant challenges
in hiring foreign workers to fill temporary agricultural (H-
2A) and non-agricultural (H-2B) jobs. Recent regulatory
and legislative developments have exacerbated conditions
affecting both employers and employees contributing to an
overall increase, at least temporarily, in H-2B processing
delays. The Ombudsman will continue to monitor
stakeholder concerns about the treatment of both employers
and employees in the H-2B program to promote improved
program functionality and address abuse concerns.

Additionally, the Ombudsman will continue to make
recommendations, as appropriate, to promote more effective
interagency communication to facilitate the lawful and
timely entry of temporary workers into the United States.

Requests for Evidence

As in previous years, the Ombudsman continues to monitor
the rates at which Requests for Evidence (RFEs) are issued
at the Vermont Service Center (VSC) and California
Service Center (CSC) in three high-skilled nonimmigrant
visa categories: H-1B (Specialty Occupation Workers),
L-1A (Intracompany Transferee Managers and Executives)
and L-1B (Specialized Knowledge Workers). The FY 2015
RFE rates for these categories continues to show disparities
between the two service centers, including fluctuations in
RFE issuance rates and unexplained divergences. The FY
2015 RFE data in other employment-based nonimmigrant
visa categories also revealed high rates of issuance in
two product lines at the VSC: O-1 (Individuals with
Extraordinary Ability or Achievement), reported at 49
percent, and P-1 (Internationally Recognized Athletes),
which increased to 65 percent. The Ombudsman will
continue to monitor and engage USCIS on issues pertaining
to the quality and frequency of RFEs.

Employment Authorization Documents

In 2006, 2008, and 2011, the Ombudsman issued formal
recommendations suggesting ways to reduce USCIS’
processing delays for employment authorization documents
(EADs). USCIS adopted some of the Ombudsman’s
recommendations, but disagreed EAD processing was a
significant issue, given the small percentage of delayed
cards. However, FY 2015 data showed EAD adjudications
after 90 days reached a troublesome 22 percent, or 449,307
filings. With a proposal to eliminate the 90-day processing
requirement currently under consideration by the agency,
timeliness remains a real concern for EAD processing.
The proposed regulatory changes are not likely to result in
decreased processing times, absent significant commitment
from the agency to devote resources to improving
processing times across the product line. The Ombudsman
continues to highlight EAD processing delays as a systemic
issue, and will continue to monitor and engage the agency
as long as EAD delays persist.

Families and Children: Applying for Naturalization

Despite President Obama’s White House Task Force on
New Americans’ efforts to strengthen existing pathways
to naturalization, a number of barriers remain to eligible
applicants. A sizable number of the 8 million permanent
residents eligible to apply for citizenship are elderly, poorly
educated, or indigent, and face greater difficulty meeting
naturalization qualifications. USCIS recently issued an
NPRM for a new fee schedule that includes a biometrics
fee waiver and a partial fee waiver for certain low-income
applicants. Nevertheless, the naturalization process
continues to be plagued by prolonged delays; USCIS is
currently failing to meet its processing time goal at almost
every field office. To ensure access to U.S. citizenship by
eligible permanent residents, the Ombudsman will continue
to monitor the naturalization process and engage with
USCIS and stakeholders through public engagements and
requests for case assistance.

Families and Children: Fee Waiver Processing

USCIS recently posted an updated version of its fee waiver
form more than doubling the length, with an additional
five pages of attestations, requiring more supporting
documentation. The updated form will have a negative
impact, particularly on pro se applicants for whom it may
serve as a deterrent. Rather than adding to the burden,
the agency should focus on clarifying and simplifying
the overall fee waiver application process and train
adjudicators on its eligibility guidance to achieve quality
and consistency in fee waiver adjudications. In addition,
stakeholders reported denial notices provide insufficient
guidance as to the inadequacies of the requests, preventing
customers and legal representatives from making
corrections that would lead to success in future requests.
The Ombudsman urges USCIS to cite specific deficiencies
in denial notices to prevent unnecessary refilings.

Families and Children: Parole

Parole authority has been increasingly used in the past few
years to reunify families, address humanitarian emergencies,
support circumstances justified by significant public
benefits, and facilitate international travel for business and
educational purposes. Despite its increased use, USCIS
has not yet issued guidance on the meaning of the Board of
Immigration Appeal’s 2012 precedent decision on advance
parole for certain individuals to return to the United States after temporarily traveling abroad or guidance clarifying
the specific types of evidence required for a grant of
humanitarian parole. Similarly, U.S. Immigration and
Customs Enforcement (ICE) has not issued guidance for
military parole in place requests from family members
of active-duty, reserve, and guard members of the Armed
Forces of the United States, resulting in inconsistent
treatment of individuals who fall under ICE jurisdiction.

The Ombudsman recently issued a formal recommendation
asking USCIS to exercise its statutory authority to
implement a parole policy for eligible U petitioners
located abroad who are waiting to receive a U visa. The
Ombudsman encourages the use of parole consistent with
statutory parameters to accomplish these and related goals,
and will continue to engage with USCIS on these issues.

Military Immigration Issues

The Ombudsman strongly supports USCIS’ efforts to
meet the needs of members of the U.S. military and their
family members. While USCIS field offices diligently
work to mitigate ongoing processing delays in military
naturalization applications by communicating with USCIS
military liaison officers, the agency has no control over
the FBI background checks and can take no action on an
application until that process is complete. These delays
undermine the purpose of USCIS’ “Naturalization at Basic
Training” initiative, and affect military readiness because
soldiers are unable to deploy with their units abroad or
obtain necessary security clearances. The Ombudsman
will continue to monitor processing delays, assist service
members, and liaise with USCIS and the FBI to identify
opportunities to address and mitigate delays.

Petitions to Remove Conditions on Residence

Despite improvements in the processing and adjudication
of petitions to remove conditions on residence (Form
I-751), stakeholders continue to express concerns with
processing delays. The Ombudsman strongly urges USCIS
to acknowledge longstanding persistent issues in the
processing of I-751 petitions, as well as implement the
Ombudsman’s 2013 recommendations to provide timely,
effective, and accurate notice to petitioners concerning their
status. The Ombudsman will continue to monitor USCIS
processing delays of petitions filed by conditional residents
and engage with USCIS on expanding the publication of
field office processing times, as well as adjudicating I-751s
within a year of receipt. (…)