This year’s United States Citizenship and Immigration Services (USCIS) Ombudsman Annual Report, detailing the accomplishments and challenges the agency faces across the spectrum of U.S. immigration, was remarkable for its candor and the depth of its analysis. The ombudsman – whose role is to serve as public advocate for stakeholders in family, humanitarian and employment-based immigration – provides an impartial and independent perspective to USCIS in an attempt to resolve problems that arise. The Ombudsman’s 2014 Annual Report, the second from Ombudsman Maria Odom, who was appointed in September 2012, proves to be especially forthright, revealing statistics about the agency that have never before been published.
This report comes as the agency adjusts to the recent appointment of new USCIS director, Leon Rodriguez. The ombudsman knows this is an opportune time to acquaint the new director with the challenges he faces, and this no doubt contributes to the critical stance the report takes towards the agency. Additionally, the 35 percent increase in requests for ombudsman case assistance in 2013 underscores the need for USCIS to improve the quality of its service and adjudications across all product lines. This column will address the report’s focus on two key employment-based immigration issues.
One of the biggest concerns for businesses filing employer-based immigration cases is the prospect of a Request for Evidence (RFE) from USCIS. USCIS operates under the preponderance of evidence (“more likely than not”) standard, and instructs its adjudicators to issue an RFE only if “the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof.” Otherwise, the adjudicator should approve or deny the petition. In her report, the ombudsman recognizes that many businesses with foreign national employees are accustomed to filing these types of cases, that they typically put together very well-supported cases at the outset, and generally do not submit them without sufficient evidence. For petitioning employers, RFEs delay their ability to put people to work, which often results in delays for product development or client services. And for USCIS, an agency funded solely by fees, issuing unnecessary RFEs is inefficient not only because it slows processing time and requires adjudicators to review cases more than once, but also because it incurs administrative costs for storing, retrieving, and matching files with RFE responses after they are submitted. In practice, an RFE should only be issued when submitted evidence does not meet the required standard of proof. However, this year’s ombudsman’s report confirms stakeholders’ fears that USCIS is increasingly issuing “unnecessary” and “unduly burdensome” RFEs.
The ombudsman’s report declares that the agency has become more aggressive with RFEs. In 2006, three of the largest employment-based classifications – H-1B Professionals, L-1A Intercompany Executives and Managers and L-1B Specialized Knowledge employees – all had RFE rates under 20 percent. This year’s ombudsman’s report reveals RFE rates of nearly 50 percent in those same categories. While it is possible that weaker cases are the cause for this spike in RFEs, the numbers of RFE issuance and final case approvals simply do not add up. For example, despite high RFE rates in 2013, USCIS ultimately approved more than 94 percent of H-1B cases filed – meaning that while nearly half of all H-1B cases were issued RFEs, only 6 percent of them were actually denied.
These discrepancies create the appearance that too many RFEs may be frivolous and inefficient, often asking for information already provided or for information unnecessary to approve the case. The ombudsman’s report has become a catalyst for dialogue among stakeholders, indicating either over-zealous agency adjudication or the need for better articulated evidentiary requirements.
The AAO (Administrative Appeals Office) is the administrative tribunal within USCIS charged with reviewing certain agency decisions. Organizationally, the AAO is part of USCIS, but is independent of any specific USCIS district office or service center. As the ombudsman acknowledges, stakeholders have expressed concern regarding the AAO’s autonomy, explaining that it is often thought of as an extension of USCIS, not an independent review panel.
In her report this year, the ombudsman has, for the first time, published the AAO’s decision statistics – and they are dismal, at least with respect to believing that any valid appeals are filed. All appeal approval rates are in the single digits, with H-1B approval ratings at roughly two percent, L-1A at seven percent, and the green card category for EB-3 Professionals and Skilled Workers at five percent. Further compounding the picture is the fact that the actual processing time for appeals is so long – sometimes up to a year, six months past the AAO’s official processing timeframe – that it is often a meaningless option.
In 2005, the ombudsman published recommendations focusing on the transparency, quality, and timeliness of the decisions issued by the AAO. In the time that has passed, some AAO filing instructions have been published, but there is still no AAO policy manual – such as the Department of Justice and Board of Immigration Appeals have – and no updated regulations to avoid any appearance of bias. According to the ombudsman’s report, the lack of regulations governing the AAO’s operations and role with respect to USCIS policies, along with its extremely low approval rates, fosters an impression among stakeholders that the AAO merely “rubber-stamps” USCIS decisions.
Sponsoring employers deserve better. The current high RFE rates, coupled with the incredibly slow, laborious, and ineffective AAO appeals process, create a demoralizing situation for employment-based stakeholders. In addressing issues of transparency, policy reform, and accountability by USCIS, the ombudsman is taking a stance, validating the concerns of its stakeholders, and most of all, creating meaningful dialogue for improvement.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at email@example.com. Elizabeth A. Geddes, a law clerk at the firm, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com