USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

e Reaching out to means-tested benefit-granting agencies to ensure that USCIS understands
their forms.

E. USCIS Administrative Appeals Office: Ensuring Transparency and Timeliness to
Enhance the Integrity of Administrative Appeals

As the CISOMB reported, the Administrative Appeals Office (AAO) has made great strides in
improving the administrative appeals process and customer access to appeals-related information
in the past year. After eliminating a long-standing backlog in FY13, the AAO has maintained
current processing times on appeals through FY14.

USCIS has also made significant improvements in the delivery of appeals-related information to
guide customers and practitioners. In January 2014, USCIS issued a new Form I-290B, Notice
of Appeal or Motion, with instructions that more clearly explain the process, standards, and filing
requirements for both appeals and motions. USCIS believes the improved instructions will help
customers file timely and complete appeals and motions. USCIS also improved the Form I-290B
itself to collect data that will improve tracking of appeals.

In March 2014, USCIS updated its website to provide customers and practitioners with clear and
accessible information about the AAO, the appeals process, what benefit categories may be
appealed, relevant forms, what to expect during the two-step appeals process, practice tips, and
how and when to contact the AAO and NCSC."

Relatedly, USCIS also streamlined the process by which the AAO’s non-precedent decisions are
redacted and posted on the website,!* reducing posting times from over a year to just several
weeks. USCIS believes these are very relevant and useful improvements and will continue to
explore other enhancements to this valuable public resource.

As recommended in the Annual Report, USCIS published an AAO Practice Manual on January
28, 2015.'° The AAO Practice Manual describes rules and procedures for parties that appear
before the AAO. It also includes information regarding appeals, motions to reopen and
reconsider, and certifications, as well as an overview and history of the AAO so that the public
may better understand the appeals process. The CISOMB also expressed concern about the lack
of appeals-related data posted to the USCIS website. USCIS has worked diligently to improve
public access to such data and, in June 2014, USCIS published AAO-related data for FY11 to
FY13 on the AAO website.””

'7 USCIS Web page, “The Administrative Appeals Office (AAO),” available at http://www.uscis.gov/about-
us/directorates-and-program-offices/administrative-appeals-office-aao/administrative-appeals-office-aao.

'S USCIS Web page, “AAO Non-Precedent Decisions,” available at http://www.uscis.gov/about-us/directorates-and-
program-offices/administrative-appeals-office-aao/aao-non-precedent-decisions.

' USCIS Web page, “The AAO Practice Manual,” available at http://www.uscis.gov/about-us/directorates-and-
program-offices/administrative-appeals-office-aao/practice-manual

° USCIS Web page, “AAO Decision Data”, available at http://www.uscis.gov/about-us/directorates-and-program-
offices/administrative-appeals-office-aao/aao-decision-data.

15


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

have received widespread praise and remain ongoing.

After reaching the FY14 statutory U visa cap in early December 2013, USCIS implemented the
regulatory wait-list for U visa petitioners who submitted petitions that would be approvable if it
were not for the cap. This process provides wait-listed petitioners with deferred action and the
opportunity to request work authorization until their petitions can be approved. As of August 30,
2014, USCIS has wait-listed nearly 19,000 principal petitioners and 12,000 family members.
USCIS has effectively used the wait list process to provide accountability and predictability for
victims of crimes cooperating with law enforcement, which also allows this vulnerable
population to receive deferred action and work permits during the pending timeframe.

Processing Times

The current posted processing time for U nonimmigrant petitions reflects the filing date of the
last petition approved under the FY14 U visa cap and not the processing time for wait-listed U
non-immigrant status grants, which is currently about 11 months. USCIS is evaluating better
ways to show processing times and wait lists on its website.

VAWA Self-Petitioners and Good Faith

USCIS maintains that Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant,
VAWA self-petitioners may submit “any credible evidence” to meet the their burden of proof.
The regulations provide an inexhaustive list of examples of credible evidence that a self-
petitioning spouse of an abusive U.S. citizen or lawful permanent resident may provide to
establish a good-faith marriage. 8 C.F.R. § 204.2(c)(2)(vii). RFEs may include examples of
documents that may be submitted that are considered primary evidence. But USCIS will
consider all credible evidence relevant to the petition and will not deny a case for failure to
submit a particular piece of evidence.

U Nonimmigrant Status Petitions and Certifying Officials

The CISOMB raised concerns about USCIS issuing RFEs to U nonimmigrant petitioners to
provide evidence of the certifying official’s authority to certify a petition. USCIS has made clear
to its officers adjudicating U nonimmigrant petitions that they do not need to RFE for
information regarding the certifying official unless there is clear evidence that the certifying
official is not an official of a recognized law enforcement entity or agency with investigative
authority.

Misunderstanding or Misapplication Between the Crime Prosecuted and the Qualifying
Crime Provided on the Form I-918B Supplement

USCIS receives thousands of U nonimmigrant petitions per month, and adjudicates each petition
individually on a case-by-case basis. Occasionally, the evidence submitted with Form I-918,
Petition for U Nonimmigrant Status, in support of the qualifying crime as identified within the
Form I-918 Supplement B, U Nonimmigrant Status Certification, is evidence in support of the


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

events.

Additionally, USCIS has made advances in transitioning from a paper and transaction-based
system to a unified Web-based, customer-centric case management system. This progress allows
the agency to continue to improve upon its current efforts to meet the needs of its customers. We
also have made great strides in providing the public access to agency officials and improving our
customer service. In hosting over 2,600 events for more than 120,000 participants in FY14,
USCIS has ushered in a new era of responsiveness to the needs of a broad array of stakeholders,
including practitioners, community-based organizations, and customers.

USCIS appreciates the CISOMB’s thoughtful and comprehensive evaluation in the Annual
Report. The recommendations that were presented provide USCIS with an opportunity to assess
the performance of the agency and identify additional ways USCIS can improve its operations.
As USCIS redesigns processes, retools procedures, and reviews guidance, we believe that this
annual review helps the agency to define successes and ensure that USCIS moves forward with
the right focus to deliver the quality service that all customers deserve.

19


USCIS Response to the Citizenship and Immigration Services Ombudsman's
2014 Annual Report to Congress

TABLE OF CONTENTS

T. INTRODUCTION ..........:essececcessseceecensesesecaneesceeenerscerenseesseseseeeseceseeeeeeeees 1

II. FAMILIES AND CHILDREN ...........:sccssessssssssssesssessscecssesesccscecesseessessees esses 1

Til. EMPLOYMENT.

TV. HUMANITARIAN ........:cccccssssesecceeeeeeeceenneseceaseseseeenessesesensesssrseersssenseees 8

V. INTERAGENCY, PROCESS INTEGRITY, AND CUSTOMER SERVICE ...

VI. RECOMMENDATIONS UPDATES. ..........cccccesseeerenssseceeneeserseeenescsesseneeeeees 18
VID. CONCLUSION ........cccssseeseeensssccceensecccceansssccssssseceneneessoaseresesseaeessosenaeees 18
Vil. APPENDIX: ACRONYMS AND ABBREVIATIONG...........sssseseseeesseseseseeeneees 20
v

www.uscis.gov


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

During a CISOMB stakeholder engagement in December 2012, stakeholders expressed their
confusion about the AAO’s role and authority. In 2013, USCIS issued a policy memorandum
that addresses the role and authority of the AAO and its appellate decisions.”’ Content from that
memorandum has been incorporated into the new website materials. In addition, the AAO
continues to emphasize the nature and scope of its role within USCIS with stakeholders.

Finally, USCIS is developing a proposed rule to update the existing regulations. USCIS is
committed to issuing more precedent decisions to guide officers and stakeholders in the correct
application of immigration law and policy, and USCIS has advanced a number of proposed
precedent decisions that are in various stages of review.

F. Data Quality and Its Impact on Those Seeking Immigration and Other Benefits

In her Annual Report, the CISOMB states that USCIS’ Verification Information System (VIS) is
a nationally accessible database of selected immigration status information containing more than
100 million records. Please note that VIS is not a database. VIS is more accurately described as
a nationally accessible system that interfaces with various databases containing more than 100
million immigration status records. Its purpose is to retrieve data needed to verify a person’s
immigration status or employment authorization. VIS responded to about 25 million E-Verify
queries in FY13. In addition, VIS responded to 14 million SAVE queries in FY13 which were 3
million more SAVE queries than referenced by the Annual Report. Also, the SAVE program has
always interfaced with CLAIMS 3, the central case management system. Recently, USCIS
enhanced the interface between SAVE and CLAIMS 3.

G. Problems with Payment of the Immigrant Visa Fee

The Annual Report highlights problems customers are experiencing when paying the USCIS
Immigrant Fee through the USCIS Electronic Immigration System (USCIS ELIS). As of
September 3, 2014, 581,367 immigrants have paid the USCIS Immigrant Fee. USCIS has held
multiple stakeholder engagements to listen to customer suggestions and concerns. As a result of
feedback received, USCIS has worked to modify and improve USCIS ELIS to enhance the
customers’ experience.

The agency recognizes that computer access can be a hurdle for some customers. To help
address this issue, USCIS intentionally provides ample time for immigrants to pay the fee.
While it is preferred that immigrants pay the fee before arriving in the United States, they also
can pay once they have arrived in the United States. This flexibility allows adequate time for
immigrants to gain computer access through a friend, relative, or library.

Because USCIS ELIS is only available in English, some customers may have difficulty creating

2! USCIS Interim Policy Memorandum, “Precedent and Non-Precedent Decisions of the Administrative Appeals

Office (AAO)” (July 2, 2013), available at
http://www.uscis.gov/sites/default/files/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for

%20Comment/AAO-Precedentand-Non-Precedent-Decisions-PM-for-Comment.pdf.

16


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

committed to making even more system improvements to enhance users’ experience.
VI. ©. RECOMMENDATIONS UPDATES
USCIS Responses to Fiscal Year 2014 CISOMB Formal Recommendations

On June 24, 2014, USCIS published its response to the CISOMB recommendation,
“Employment Eligibility for Derivatives of Conrad State 30 Program Physicians.””° USCIS
concurred in principle with the CISOMB’s recommendation to promulgate new regulations that
permit independently eligible J-2 dependents of J-1 physicians approved for a Conrad State 30
program waiver to change to other employment-authorized nonimmigrant classifications to the
degree authorized by law. USCIS is currently reviewing present regulations and considering
whether steps should be taken to enable such J-2 dependents to engage in employment while in
H-4 status.

On September 30, 2014, USCIS published its response to the CISOMB recommendation,
“Improving the Quality and Consistencies of Notices to Appear.””” While USCIS concurred with
many of the recommendations provided by CISOMB, the response also stated that “further
changes in DHS policy may impact the ability of USCIS to fully implement these
recommendations.””* Additional guidance was issued shortly after USCIS’ response to the
recommendation was issued. On November 20, 2014, the DHS Secretary issued a memorandum
with updated guidance on the apprehension, detention, and removal of aliens.” USCIS will
work closely with ICE and CBP during the implementation of this guidance.

VII. CONCLUSION

USCIS has successfully responded to a number of challenges this past year, including an
unprecedented growth in requests for relief on the Southwest Border by victims of crime and
people fleeing danger in Central America and Mexico. Similarly, when legislative or legal
changes have occurred, USCIS has handled them with competence and sensitivity. As the
agency implemented the 2012 DACA policy and subsequently moved to its renewal phase,
USCIS remained open to developing policies that respond to emerging trends and international

?6 USCIS Memorandum, “Response to Citizenship and Immigration Services Ombudsman’s Formal

Recommendation No. 57, ‘Employment Eligibility for Dependents of J-1 Conrad State 30 Program Physicians:

(June 24, 2014), available at

http://www.uscis.gov/sites/default/files/USCIS/Native%20Docs/2014-

0624 Response_to_CISOMB_Rec_57_Signed.pdf.

27 USCIS Memorandum, “Response to Citizenship and Immigrations Services Ombudsman’s Formal

Recommendation, ‘Improving the Quality and Consistency in Notices to Appear” (Sept. 30, 2014), available at

http://www.uscis.gov/sites/default/files/USCIS/About%20Us/20 14-0930 _USCIS_Response_Memo_-
NTA_Rec_Signed.pdf.

B
Id. at p. 4.
2° DHS Memorandum, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants”

(Nov. 20, 2014), available at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.

18


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

USCIS is drafting a national standard operating procedure (SOP) that will highlight best
practices and ensure that its responses are standardized and consistent throughout the agency.
USCIS expects to implement the SOP by the end of 2015.

C. Issues with USCIS Intake of Form G-28

As noted in the Annual Report, USCIS recognizes that the improper filing of a Form G-28,
Notice of Entry of Appearance as Attorney or Accredited Representative, causes practical
difficulties for attorneys, accredited representatives, and their clients. USCIS also realizes that
legitimate representatives are frustrated when a Form G-28 is rejected and the attorney or
accredited representative is unable to obtain information about his or her clients’ cases. USCIS is
currently reviewing the policy and procedures for rejecting an improperly filed Form G-28. In
the interim, USCIS reminds attorneys and accredited representatives of the importance of
submitting properly completed forms. To prevent a Form G-28 from being rejected, the form
must be filled out completely and signed by the petitioner or applicant, as well as the attorney or
accredited representative. If petitions or applications include family members, or are submitted
for other family members, or for different petitioners or applicants, then attorneys and accredited
representatives should ensure that a separate Form G-28 is signed and submitted for each
petitioner or applicant who is seeking a benefit.

In addition, USCIS updated its website with Form G-28 Tips for Lockbox Facility Filings to help
ensure the Form G-28s received by the Lockbox are recognized as valid. 4

USCIS cannot legally correspond with an attorney or accredited representative about his or her
client’s case if USCIS does not have a properly filed Form G-28 on file.

If a Form G-28 has been deemed invalid, the attorney or accredited representative has an
opportunity to submit a Form G-28 after the application or petition has been filed. A new,
properly completed, Form G-28 should be sent to the USCIS office where the case is assigned
and include the receipt number of the associated application/petition on Form G-28 in Part 3,
Item 7.

D. Fee Waiver Processing Issues

In her Annual Report, the CISOMB notes concerns with inconsistency between USCIS policy
and fee waiver instructions, particularly as it relates to household income. More than 90 percent
of the forms and fees are taken in at three Lockbox facilities and, therefore, Lockbox staff review
most fee waiver requests. USCIS is committed to handling fee waiver requests fairly,
consistently, and timely. USCIS is conducting weekly audits to review the accuracy of its
decisions. In FY13, based on the data received from weekly audits, USCIS found a 98-percent
accuracy rate in decisions on the 459,000 fee waiver requests USCIS received.

'4 G.28, Notice of Entry of Appearance as Attorney or Accredited Representative: Tips for Lockbox Facility Filings
available at http://www.uscis.gov/forms/g-28-notice-entry-appearance-attorney-or-accredited-representative-tips-

lockbox-facility-filings.

13


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

the reason for the denial. Thus, in these cases the DACA requestor is fully informed of why the
request was denied.

USCIS is aware of only a small number of cases where denials were issued without an RFE
and/or NOID having been issued. In all of the cases the agency reviewed, the denial was
justified and did not warrant the issuance of an RFE and/or NOID beforehand. For example, the
requestor was 31 years of age or older on June 15, 2012. Furthermore, USCIS has allocated
more resources to address individual DACA cases delayed due to background checks.

Denials

Although there are no appeals in general for DACA filings, the agency’s Frequently Asked
Questions (FAQs)’ describe nine scenarios in detail when a DACA denial will be reviewed due
to a possible agency error. If a requestor can demonstrate that USCIS incorrectly denied his or
her DACA request based on one of the scenarios described in the FAQs, the requestor should call
the National Customer Service Center (NCSC) at 1-800-375-5283 to ask that his or her case be

reviewed.
Il. EMPLOYMENT

A. Highly Skilled Workers: Longstanding Issues With H-1B and L-1 Policy and
Adjudications

The CISOMB asserts that USCIS’ RFEs for H-1B and L-1 petitions can be overly burdensome
and redundant. The CISOMB also expresses concern about how USCIS is applying the
preponderance. of evidence standard and defining “specialized knowledge” in the L-1B context.

To identify and address issues in the adjudication of L-1 petitions, USCIS has formed an internal
L-1 Working Group consisting of staff with operational, policy, and legal expertise. This group
meets to identify and address issues such as the interpretation of “specialized knowledge” and
the anti-“job shop” provisions in the L-1 Visa and H-1B Visa Reform Act of 2004.8 Also, earlier
this year, the Service Center Operations Directorate (SCOPS) began conducting monthly calls
with the Vermont and California Service Centers (VSC and CSC) to discuss L adjudication
issues.

USCIS has also created an H-1B Working Group to review operational, policy, and legal issues
in adjudicating H-1B petitions. One noteworthy outcome is this group’s effort to revise and
update agency guidance on H-1B petitions, which will be incorporated into the USCIS Policy
Manual.

7 Consideration of Deferred Action for Childhood Arrivals Process Frequently Asked Questions, available at
http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-

questions.
® Pub. L. No. 108-447, Div. J, Tit. IV, 118 Stat. 2809, 3351; 8 USC § 1184 note.



USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

However, it notes that wait times have been longer than expected. USCIS can report
considerable improvement in processing times in just 3 months between May and July 2014, at
which point processing times were approximately 4.5 months. Processing times held steady at
just under 5 months throughout the remainder of calendar year 2014, but USCIS continues to
look for opportunities to reduce the processing times to a desired 3 months.

Denials and Guidance on Evidence Required for Form I-601A

The CISOMB expressed concerns about denials of Form I-601A, Applications for Provisional
Unlawful Presence Waivers when USCIS finds a reason to believe that the applicant may be
found inadmissible at the time of his or her immigrant visa interview for fraud or
misrepresentation. The CISOMB indicates that USCIS issues these denials without considering
the full record or providing the applicant an opportunity to submit additional evidence. The
CISOMB requested that USCIS issue guidance specifying the type of evidence that would
support a fraud/misrepresentation finding and give applicants a chance to submit additional
evidence and ask for reconsideration of previously denied cases.

USCIS encourages all applicants to submit all documentation they believe will establish their
eligibility for the provisional unlawful presence waiver, including documentation to address
potential grounds of inadmissibility. USCIS makes this clear in the instructions that accompany
the Form I-601A and in the information about the provisional unlawful presence waiver process
available on USCIS’ website. Any documents applicants submit when they file the Form I-601A
are part of the record and USCIS officers review all evidence as part of the normal adjudication

_ process. Also, USCIS officers will issue Requests for Evidence (RFEs) if additional evidence is
needed to establish extreme hardship or demonstrate that a favorable exercise of discretion is
warranted. The standards for assessing whether an applicant has established extreme hardship
are the same as those applied in the general waiver process. USCIS does not make admissibility
determinations when adjudicating an I-601A application. The Department of State (DOS) makes
determinations of an individual’s eligibility to receive a visa, including on inadmissibility
grounds, when the applicant appears for an interview on his or her application for an immigrant
visa. Finally, denial of a provisional unlawful presence waiver does not preclude the applicant
from obtaining a waiver by filing a Form 1-601, Application for Waiver of Grounds of
Inadmissibility during the consular process.

USCIS recently published Policy Manual guidance on the fraud and willful misrepresentation
grounds of inadmissibility. This guidance is in Volume 8, Admissibility. Part J, Fraud and

Willful Misrepresentation.

B. Special Immigrant Juveniles

The CISOMB raised concerns about how USCIS interprets and applies its Special Immigrant
Juvenile (SIJ) “consent” authority, treats the State court’s determination, handles age-outs and
decisions for people nearing the age of 21, and conducts interviews with this vulnerable
population. USCIS is mindful of the sensitive nature of these cases and works diligently to
ensure proper attention is given to this vulnerable population. Over the past several years,


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

I. INTRODUCTION

USCIS! thanks the CISOMB for the analysis provided in the 2014 Annual Report. USCIS
appreciates the review of the agency’s operations and welcomes the opportunity to respond to the
Annual Report.

Family unification remains a focus for USCIS due to its important role in U.S. immigration. For
example, USCIS efforts have resulted in significant improvement in processing times for Form
1-601, Application for Waiver of Grounds of Inadmissibility. Additionally, the agency welcomes
the feedback from the CISOMB relating to special immigrant juveniles and continues to work to
improve the process for this population

USCIS continues to dedicate significant resources to improve the processing of employment-
based applications and petitions. A newly created working group, put in place to review
operational, policy, and legal issues in adjudicating H-1B (specialty occupation) nonimmigrant
worker petitions, has already begun the process of updating agency guidance, which will
ultimately be incorporated into the USCIS Policy Manual. Also, USCIS remains committed to
interagency meetings to address concerns with the H-2A (temporary agricultural workers) and H-
2B (temporary nonagricultural workers) classifications. With the rapid growth of the EB-5
Immigrant Investor Program, USCIS remains focused on program enhancements to strengthen
the integrity of the program while also responding to recommendations made in the Office of
Inspector General’s December 2013 report on the EB-5 regional center program.

USCIS recognizes the great importance of its humanitarian-based programs, and the agency
continues to prioritize them accordingly. Not surprisingly, this has resulted in reduced
processing times for victims of domestic violence, trafficking, sexual assault, and other violent
crimes. And, despite a surge in the credible fear caseload, USCIS has been able to significantly
reduce processing times for these cases.

Customer service remains central to the agency’s mission, and USCIS has continued to build on
its efforts to improve communication with its customers and enhance the customer experience.
Those efforts include updating agency guidance on customer service in the USCIS Policy
Manual, extensive and growing outreach, regular website updates based on stakeholder feedback,
improving the administrative appeals process and customer access to appeals-related
information, and an ongoing exploration of ways to streamline customer facing processes.

Il. FAMILIES AND CHILDREN

A. Provisional Unlawful Presence Waiver and Other Immigrant Waivers of Inadmissibility

The CISOMB’s Annual Report recognizes improvements in the uniformity of filing and
centralized adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility.

' In this response, “USCIS” and “agency” are used interchangeably.


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

Inability to pay the fee and, therefore, eligibility for a fee waiver is based on the individual’s
overall financial picture and household situation. USCIS policy states that a person will be
determined to be unable to pay the fee when their total household income is below 150 percent

of the Federal Poverty Guidelines.'°

Applicants who request a fee waiver based on having income below 150 percent of the Federal
Poverty Guidelines (step 2), must document their own income, plus the income of any member
of the household who is providing more than half of their support.'® This may require an
applicant to document the income not only of each person with whom they live, but also of
others who are providing income to support the household, which would affect the income
determination.

USCIS is committed to ensuring that its fee waiver policies and procedures are clear. USCIS
established a working group to review the current Form I-912, Request for Fee Waiver, form
instructions, and related policy. During this process, USCIS will engage stakeholders for input
to clarify household size and income calculations. USCIS will provide an opportunity for public
comment through the Federal Register process.

USCIS also has a very proactive customer relations program and maintains an email box—
lockboxsupport@uscis.dhs.gov—where the public can submit inquiries related to fee waivers.
USCIS responds quickly to many questions and clarifies the kinds of documentation that help
support a fee waiver request.

Additionally, USCIS has undertaken initiatives to inform applicants and stakeholders of the fee
waiver process and how to improve the documentation submitted with fee waiver requests.

These initiatives include:

e Posting Fee Waiver Filing Tips on uscis.gov that provide information on documenting
means-tested benefits, a household income below 150 percent of the Federal Poverty
Guidelines, and financial hardship. The filing tips also describe common reasons why a
Form I-912, Request for Fee Waiver, is denied;

¢ Clarifying language on rejection notices explaining that fee waiver requests as well as
supporting documentation must be in English, or accompanied by a full English language
translation, which the translator has certified as complete and accurate, and

'S USCIS Policy Memorandum, “Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee
Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11-26” (Mar. 13, 2011),
available at
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/March/FeeWaiverGuidelines_Established_b
y_the_Final%20Rule_USCISFeeSchedule.pdf.

'© Instructions for Form 1-912, Request for Fee Waiver, Step 2, Item 4 (p. 4), available at
http://www.uscis.gov/sites/default/files/files/form/i-9 12instr.pdf.

14


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

Age-out Concerns and Decisions for People Nearing the Age of 21

USCIS is in full compliance with all laws and obligations relating to age-out concerns. In 2009,
USCIS provided guidance to adjudicators on how to implement the age-out protections provided
in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA
2008).° In 2011, USCIS also issued a policy memorandum to ensure compliance with
obligations under the Perez-Olano settlement agreement.

Ensuring Child-Appropriate Interviewing Techniques

During fiscal year (FY) 2014, all USCIS officers who adjudicate Form 1-360 petitions for SIJ
classification were trained to ensure they appropriately apply all current laws, regulations, and
policies. The training included a section that covered techniques on the delicate nature of
interviewing a child. USCIS has drafted updated SIJ policy guidance that provides more
direction on conducting child-friendly interviews and waiving interviews when appropriate. The
policy guidance is currently in clearance. The agency is also in the process of developing child-
specific sensitivity training for officers.

C. Deferred Action for Childhood Arrivals (DACA)
Processing Times and Denials

The CISOMB reports that 15 percent of the case assistance requests that her office received
concerned deferred action for childhood arrivals (DACA) pursuant to guidelines issued in 2012.
Complaints range from being past processing time goals, the agency issuing template denials
with limited information about the reasons for the denial, and not issuing an RFE or a Notice of
Intent to Deny (NOID) before sending a denial notice.

Some individual cases raise novel policy questions that must be vetted and resolved. While most
DACA requests are decided within the 6-month processing time goal, some cases may take
longer depending on the complexity of issues. USCIS does not capture in its systems the
specific reasons why cases remain pending. USCIS would need to manually review each
individual case record.

In most cases, USCIS issues RFEs and/or NOIDs before a denial is issued. The RFE lays out the
document(s) or information that USCIS needs to make a decision. The NOID states the basis for
the denial. In either case, the DACA requestor has ample opportunity to respond and provide
information to overcome the potential denial. The denial template then indicates (via checkbox)

5 See USCIS Memorandum, “Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant

Juvenile State Provisions” (Mar. 24, 2009), available at
http:/Avww.uscis.gov/sites/default/files/ USCIS/Laws/Memoranda/Static_Files_ Memoranda/2009/TVPRA_SIJ.pdf.

6 See USCIS Policy Memorandum, “Implementation of the Special Immigrant Juvenile Perez-Olano Settlement

Agreement” (Apr. 4, 2011), available at
http://www.uscis.gow/sites/default/files/USCIS/Laws/Memoranda/201 1/April/perez-olano-settlement.pdf.



USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

VIII. APPENDIX: ACRONYMS AND ABBREVIATIONS

AAO Administrative Appeals Office

CBP U.S. Customs and Border Protection

Cce Customer Contact Center

CFR Code of Federal Regulations

CRU Case Resolution Unit

CSC California Service Center

DACA Deferred Action for Childhood Arrivals
DOL Department of Labor

DOS Department of State

ELIS Electronic Immigration System

FAQ Frequently Asked Questions

FOD Field Operations Directorate

FY Fiscal Year

ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act

IPO Immigrant Investor Program Office

NBC National Benefits Center

NCSC National Customer Service Center

NOID Notice of Intent to Deny

OIDP Office of Intake and Document Production
OMB Office of Management and Budget

RFE Request for Evidence

SAVE Systematic Alien Verification for Entitlements
SCOPS Service Center Operations Directorate

SJ Special Immigrant Juvenile

SOP Standard Operating Procedures

SRMT Service Request Management Tool
TVPRA 2008 Trafficking Victims Protection Reauthorization Act of 2008
UAC Unaccompanied Alien Children

VAWA Violence Against Women Act

VIS Verification Information Systems

VSC Vermont Service Center

20


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USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

B. H-2 Temporary Worker Programs

In the Annual Report, the CISOMB cites an increase in H-2 inquiries from stakeholders
regarding what it believes to be unnecessary or redundant RFEs scrutinizing the “temporariness”
or “seasonality” of occupations. USCIS recognizes this is an area that may benefit from
additional stakeholder engagement, but wishes to emphasize that by statute, USCIS is the final
arbiter as to eligibility for H-2 classification, including questions of temporariness and
seasonality. To that end, USCIS actively engages with the H-2 community, including
representatives of employers and workers, to ensure that customers are filing properly prepared
petitions. At a recent open house at the CSC, for example, USCIS reviewed filing tips for H-2A
and H-2B petitions and reminded stakeholders to alert SCOPS of RFEs that they believe do not
appear to comply with agency regulations and guidelines. USCIS also remains committed to
holding interagency meetings with the CISOMB, U.S. Department of Labor (DOL), and DOS to
address concerns with the H-2A and H-2B classifications, including RFEs and consular returns.

C. EB-5 Immigrant Investor Program
Completing the Transition to Washington, DC

The CISOMB cites general satisfaction with USCIS’ progress in overseeing the rapidly growing
EB-5 Immigrant Investor Program. USCIS has worked hard to align its resources and expertise
with the challenges this increasingly popular and innovative product line presents. The
Immigrant Investor Program Office (IPO) moved to a permanent location in Washington, DC,
last fall and completed the transfer of EB-5 adjudicative functions on September 30, 2014. As of
May 30, 2015, IPO had 51 adjudications officers and 17 economists in place, an increase of
(30%) from September 30, 2014 for adjudications staff. USCIS has dedicated additional FTEs to
IPO in FY 2015, and plans to increase the staffing of the office by more than (30 %) in the
coming months.

The EB-5 program has experienced tremendous growth over the last several years. At the end of
FY07, there were 11 regional centers approved for participation in the EB-5 program. Today,
there are more than 500 approved regional centers. Between FY07 and FY13, receipts of Form
1-526, Immigrant Petition by Alien Entrepreneur increased by approximately 718 percent from
776 to 6,346 while receipts for Form 1-829, Petition by Entrepreneur to Remove Conditions,
increased by approximately 527 percent from 194 to 1,217. USCIS anticipates further
improvements to IPO once it achieves target staffing. USCIS will continue to focus on reducing
the backlog of pending EB-5 petitions and minimizing adjudication delays.

Customer Service and Stakeholder Engagement

For years, USCIS has conducted EB-5 stakeholder engagements and maintained an active
dialogue with this community. IPO has prioritized customer service, transparency, and
engagement with stakeholders. IPO has held EB-5 stakeholder engagements in February, April,
July, and September of this year and has solicited stakeholder feedback on potential EB-5
regulatory changes through the online crowdsourcing platform IdeaScale. IPO also recently


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

In addition to these internal working groups, USCIS formed an interagency working group with
U.S. Customs and Border Protection (CBP) to conduct joint training on L-1 issues and ensure
consistency in L-1 adjudications. USCIS also has a similar working group with DOS.

RFE Rates

USCIS has commented before that supervisory review of all RFEs is not operationally feasible.
However, USCIS continues to stress that supervisors review all decisions, including RFEs, made
by new officers until the officer demonstrates proficiency in the classification. The agency also
continues to conduct quality assessments on RFEs with the most recent review conducted in

September 2014.

With respect to L-1B RFEs, USCIS is working with service centers to develop a nationally
standardized L-1B RFE template. When the draft is complete, USCIS will post it for stakeholder

comment.

The RFE rate for H-1B filings can fluctuate due to several factors. For example, the RFE rate
during cap season often increases because the filings are for new employment and often require
additional documentation to establish initial eligibility. Stakeholders, however, should continue
to notify USCIS when they receive RFEs that do not appear to comply with agency regulations
or guidelines.

Preponderance of the Evidence

As the CISOMB recommended, USCIS will review its existing standards of evidence training
and, where necessary, develop additional instruction to assist adjudicators in applying the
appropriate evidentiary standard. In the interim, USCIS notes that the appropriate standard of
proof remains an integral part of classification-specific training at all service centers. If
“preponderance of evidence” is the appropriate standard of proof for a given classification, then
the training for that classification always has a preponderance of evidence segment embedded in
the course. Supervisors regularly remind officers of the difference between the preponderance of
evidence standard and other standards of proof, such as the clear and convincing evidence
standard or the “clearly and beyond doubt” standard.

Recommendations Regarding Guidance on “Specialized Knowledge”

USCIS has drafted a policy memorandum addressing the definition and analysis of “specialized
knowledge” in L-1B adjudications. The draft policy memorandum also includes guidance on the
2004 L-1 Visa Reform Act. On March 24, 2015, USCIS posted the draft policy memorandum for
public comment.’

° See USCIS Draft Policy Memorandum, “L-1B Adjudications Policy” (March 24, 2015), available at
http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/2015-0324-

Draft-L-1B-Memo.pdf.



USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

USCIS has worked to improve the adjudication process for this population by collaborating
closely on operations and policy. As always, USCIS welcomes the opportunity to review
specific cases in order to further improve agency policy and practices.

Interpretation and Application of the SIJ “Consent” Authority

USCIS’ consent function is a statutorily mandated part of the SIJ process. Relying on
congressional intent, USCIS has interpreted the consent function as determining whether an SIJ
petition is bona fide.” Despite legislative changes to the definition of SIJ, Congress has retained
the consent requirement.> USCIS’ longstanding policy on consent is found in “Memorandum #3:
Field Guidance on Special Immigrant Juvenile Petitions.”* While certain aspects of agency
policy may have altered in light of statutory changes, the guidance related to consent in
Memorandum #3 remains in effect.

To consent to the classification of SIJ status, USCIS must determine that the SIJ petition is bona
fide. This means that the order was sought primarily for relief from abuse, neglect, or
abandonment, and not primarily for an immigration benefit. Therefore, a USCIS officer must be
aware of the facts that formed the basis for the court’s order, or determine that a reasonable basis
in fact exists. Orders that include or are supplemented by specific findings of fact are usually
sufficient to establish eligibility. Such findings need not be overly detailed, but must reflect that
the juvenile court made an informed decision. However, there are situations where the orders do
not include specific findings of fact. In these instances, a USCIS officer may request additional
evidence to provide the petitioner with an opportunity to demonstrate the factual basis for the
juvenile court's decision.

Questioning State Court Jurisdiction

When adjudicating SIJ petitions, USCIS officers defer to the juvenile court’s findings and
expertise. However, for the reasons discussed above, there may be instances where additional
information is needed from the court. If there are specific cases that have prompted the
CISOMB’s concerns in this area, USCIS is open to reviewing them.

? See INA 101(a)(27)(J)(iii).

3 The original authority was termed “express consent” and was consent to the dependency order as a precondition to
grant SIJ classification, but was later changed to simply “consent” to the grant of SIJ classification. See
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub.
L. No. 105-119, section 113, 111 Stat. 2440 (1997)); William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, section 235(d)(1), Pub. L. No. 110-457, 122 Stat. 5044.

* See USCIS Policy Memorandum, “Memorandum #3 -- Field Guidance on Special Immigrant Juvenile Status
Petitions” (May 27, 2004), available at
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-

2008/2004/sij_memo_052704.pdf.



USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

their USCIS ELIS account. To help those customers, USCIS has created a number of resources
and tools in a variety of languages to give detailed instructions on how to create a USCIS ELIS
account and pay the fee.

These resources include:

e USCIS ELIS “Establishing Online Access” video (available in English and Spanish);

e “How Do I Pay the USCIS Immigrant Fee” guide (available in English, Chinese
(Mandarin), French, Hindi, Korean, Portuguese, Spanish, Tagalog, Urdu, and
Vietnamese); B

e USCIS Immigrant Fee Payment Guide; and

e Tips on Finding Your A-Number and DOS Case ID (available in English and Spanish).”*

Additionally, USCIS continues to explore ways to improve the immigrant fee payment process.
Currently, immigrants must create a USCIS online account to pay the fee. The USCIS
Immigrant Fee can be paid by a credit or debit card or through electronic funds transfer from a
USS. bank account. USCIS is now building capability that will allow individuals, other than the
immigrant, to pay the fee on the immigrant’s behalf without having to create a permanent USCIS
ELIS account. This new capability will minimize the amount of personally identifiable
information USCIS needs from the immigrant to pay the fee. It also will allow immigrants to
retain full access to their personal accounts without the risk of their accounts being accessible to
others. Immigrants will be able to use their permanent accounts for future electronic filings or
transactions with USCIS. Finally, USCIS has made it easier for immigrants to create an online
account by simplifying the password reset and security questions process. Password reset and
security questions are based on personal information that is unique to the immigrant. USCIS has
now included questions that can be more easily remembered by the immigrant.

Of particular significance, last year USCIS established the USCIS ELIS Customer Contact
Center (CCC). Staffed with trained USCIS officers and technically proficient specialists, the
CCC handles all types of USCIS ELIS case-related questions. Customers can submit their
question through an online form located at https://egov.uscis.gov/cris/contactus.

While paying the immigrant fee in USCIS ELIS may be challenging for a small percentage of
immigrants, USCIS believes that it has been responsive to these issues and the modifications it
has made have improved accessibility. USCIS ELIS is the vision for the future, and USCIS is

2? USCIS Web page, “Establishing Online Access: USCIS ELIS Video,” available at
http://www.uscis.gov/tools/uscis-videos-audio-files/establishing-online-access-uscis-elis-video.

23 USCIS Web page, “How Do I Pay the USCIS Immigrant Fee,” available at http://www.uscis.gov/tools/how-do-i-
customer-guides/how-do-i-pay-uscis-immigrant-fee.

24 «USCIS ELIS Immigrant Fee Payment Guide,” available at
http:/Avww.uscis.gov/sites/default/files/USCIS/USCIS%20ELIS/immigrant-fee-guide.pdf.

25 USCIS Web page, “Immigrant Fee Payment: Tips on Finding Your A-Number and DOS Case ID,” available at
http:/Awww.uscis.gov/uscis-elis/immigrant-fee-payment-tips-finding-your-number-and-dos-case-id.

17


USCIS Response to the Citizenship and Immigration Services Ombudsman's
2014 Annual Report to Congress

The CISOMB also noted the agency’s successful implementation of:

e The Deferred Action for Childhood Arrivals guidance issued in 2012;
e The U.S. Supreme Court decision in United States v. Windsor, 570 U.S. 12 (2013),
holding that section 3 of the Defense of Marriage Act is unconstitutional;

e Parole-in-place policy guidance for spouses, children, and parents of active and former
members of the U.S. Armed Forces, Selected Ready Reserves, and other military family

members;
e The Provisional Unlawful Presence Waiver program to promote family unity; and
e EB-S policy and operational guidance.

I share in the CISOMB’s recognition of these accomplishments and note that these achievements
only scratch the surface of the positive steps USCIS has taken over the past year. To highlight a
few more milestones, USCIS has:

e Reduced credible fear processing times despite an exponentially growing caseload;
e Reduced the time it takes to publish processing time data;
e Identified ways to streamline our response to service requests; and

e Undertaken initiatives to inform applicants and stakeholders of the fee waiver process.

As the child and grandchild of immigrants, I understand the hopes and aspirations of many of
those who arrive on our shores, as well as the challenges and fears they face both before and
after they get here. Like countless others, my parents sought a better future for our family. It is
in part due to this understanding of the immigrant experience that I place a high priority on
making sure our interactions with our customers are the best they can be while always remaining
vigilant in our efforts to detect and prevent the entry of individuals who pose a threat to our
national security and/or public safety.

I welcome the CISOMB’s constructive suggestions as an expert observer and express my
gratitude for her service and dedication. We, as an agency, stand ready to work with the
CISOMB to ensure USCIS is serving our customers, stakeholders, and the American public, as
well as we possibly can.

Sincerely, w

AAA

Leén Rodriguez
Director, U.S. Citizenship and Immigration Services

www.uscis.gov


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

crime prosecuted or investigated by the certifying entity, rather than evidence of the qualifying
crime.

For example, DOL may discover qualifying crimes of involuntary servitude and/or peonage
during a wage-and-hour violation investigation, and provide a Form I-918B supplement in which
the involuntary servitude and the peonage are identified as the qualifying crimes. However, the
evidence submitted with Form I-918, Petition for U Nonimmigrant Status, only reflects the
wage-and-hour violations which typically will not equate to a qualifying crime (although, the
same facts can support both a qualifying crime and a wage-and-hour violation). The petitioner’s
own testimony often fails to reference the qualifying crime(s) or articulate the substantial harm
resulting from the qualifying crime(s). Instead, the focus is on the non-qualifying crime
investigated by the certifying entity. As a result, USCIS continues to have dialogue with
community-based organizations and law enforcement about these issues, ensuring that
community-based organizations understand the types of evidence that may be sufficient to
establish that petitioners in these types of filings are eligible for U nonimmigrant status.

B. Humanitarian Reinstatement and Immigration and Nationality Act (INA) Section 204(1)

Reinstatement

In the Annual Report, the CISOMB states that there is a gap in guidance, a lack of uniform
procedures and imprecise evidentiary requirements from USCIS when dealing with humanitarian

and INA 204(1) reinstatement cases.

Under INA 204(1), USCIS has discretion to continue adjudication of a visa petition or
refugee/asylee relative petition or an application for adjustment of status based on an approved
petition despite the death of a qualifying relative unless USCIS determines that approval would
not be in the public interest. When INA 204() was enacted, USCIS issued policy guidance and
updated the Adjudicator’s Field Manual to ensure that adjudicators decided qualifying cases
consistently and uniformly.'' USCIS also began holding discussions with Service Center
adjudicators to increase consistency in adjudicating reinstatement cases. USCIS added
information to its website that includes examples of the types of evidence that may help justify a
favorable exercise of discretion. USCIS also created an electronic history action code in the
agency’s case management system that allows USCIS to track the adjudicative progress of all
requests for reinstatement. USCIS believes these additional actions ensure that decisions on
humanitarian and INA 204(1) reinstatement cases continue to be adjudicated in a uniform
manner.

Lack of Standardized Procedures

"! See USCIS Policy Memorandum, “Approval of Petitions and Applications After the Death of the Qualifying
Relative under New Section 204(1) of the Immigration and Nationality Act, PM-602-0017” (Dec. 16, 2010),

available at
http:/Avww.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf.

10


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

Agency policy states that treatment of a request for humanitarian reinstatement under 8 CFR
205.1 must also be treated as a request for reinstatement under INA 204(1) when the record
reflects that the person qualifies under INA 204(1), even if the person may have mistakenly used
the wrong term when requesting relief.'

Vv. INTERAGENCY, PROCESS INTEGRITY, AND CUSTOMER SERVICE

A. USCIS Processing Times and Their Impact on Customer Service

In her Annual Report, the CISOMB indicates that stakeholders have raised concerns about the
case processing times posted on uscis.gov, how the processing times are calculated, and the
timeliness of updates. The CISOMB recommends that USCIS consider new approaches to
calculating case processing times.

USCIS recognizes that the case processing times have caused confusion for some agency
customers. USCIS is exploring other ways to better calculate and publish these processing times.
One method being considered is using statistical models to predict processing times based on
historical case data. In the meantime, USCIS currently publishes the data within a 30-day cycle.

B. USCIS Customer Service: Ensuring Meaningful Responses to Service Requests

USCIS has formed an internal working group to assess the quality of its responses to service
requests. The working group is looking at three specific areas:

e Determining if the Service Request Management Tool (SRMT) needs enhancement;
e Implementing training throughout the agency to improve response quality; and
e Expanding communications.

During FY 14, the four service centers created quality assurance programs to examine how they
are responding to service requests. Outcomes of this program include:

e A better way to screen incoming mail and records, which significantly decreased the
number of requests service center staff make for additional evidence and case reviews;

e Reviewing customer records before preparing the response, which improves the quality
of the response and reduces the chance the customer will have to make a second inquiry;

e Publication of a Customer Service User Guide that is used by all staff. This guide has
improved consistency and accuracy.

'8 See USCIS Policy Memorandum “Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens
and Their Children (REVISED)” (Dec. 2, 2009), available at
http:/Avww.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2009/Widower120209.pdf.

12


USCIS Response to the Citizenship and Immigration Services Ombudsman's
2014 Annual Report to Congress

A Message from the Director

It is my pleasure to present the U.S. Citizenship and Immigration
Services (USCIS) Response to the Citizenship and Immigration
Services Ombudsman’s (CISOMB) 2014 Annual Report to Congress
(Annual Report). I very much appreciate the CISOMB’s thoughtful and
informed recommendations for improvement, as well as her
acknowledgment of several of our achievements. In this response, we
seek to address the concerns she raised in her Annual Report, as well as
highlight some of the many additional accomplishments of USCIS over
the past year.

I look forward to building upon the strong relationship that already
exists between USCIS and the CISOMB. It is a relationship based on
the shared goals of:

e Enhancing the USCIS customer experience through timely adjudication and delivery of
immigration benefits;

e Expanding access to immigration information and resources;
e Responding quickly and completely to stakeholder concerns; and

e Ensuring that USCIS can rise to the new challenges we face on a daily basis.

We will only be able to reach these shared goals, and accomplish our complex and vital mission,
through the efforts of more than 18,000 dedicated public servants who each day administer a
complex immigration system fairly, steadfastly, and professionally. In my short time as Director,
it has become clear that these employees are up to the task. We, as a Nation, should be pleased
with the extremely high level of talent, commitment, and work ethic that characterize the USCIS

workforce.

In her Annual Report, the CISOMB recognized our fundamental transformation into a “more
agile and customer-oriented agency.” She endorsed many of our achievements including:

e Asignificant decrease in processing times for applications for naturalization and lawful
permanent residence;

e The critical role that the Lockbox operations and the National Benefits Center play in an
efficient and reliable intake case processing system; and

e Our continued commitment to public engagement and developing new customer-oriented
policies and initiatives.

iii
www.uscis.gov


U.S, Department of Homeland Security
USS. Citizenship and Immigration Services
Office of the Director (MS 2000)
Washington, DC 20529-2000

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JUN 09 2015

Maria M. Odom

Citizenship and Immigration Services Ombudsman
U.S. Department of Homeland Security

Mail Stop 0180

Washington, DC 20528-0180

Dear Ms. Odom:

I appreciate the thoughtful and comprehensive analysis of U.S. Citizenship and Immigration
Services’ (USCIS) operations and policies found in your 2014 Annual Report to Congress
(Annual Report). I, along with senior staff within USCIS, reviewed the Annual Report in depth,

and we concur with many of the findings.

The Annual Report is an important public-facing evaluation of our performance. Our response is
also significant as we highlight our successes and ongoing efforts to improve our service.
Although USCIS has accomplished a great deal this past year, we share your objective to
improve the quality of adjudications and service delivery across all immigration form types.

With that, I am pleased to present you with USCIS’ Response to the Annual Report. Our goal is
to provide you, the CIS Ombudsman, Members of Congress, our USCIS customers, and the
public with the confidence that serving customers capably, professionally, and accurately is at the
core of everything we do.

Thank you again for your valuable feedback. I look forward to working with you in the future as
USCIS continues to improve upon the already high quality of service we provide our customers.

Sincerely,

Leon Rodriguez
Director, U.S. Citizenship and Immigration Services

ii
www.uscis.gov


USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

established a Stakeholder Engagement Branch. The Stakeholder Engagement Branch addresses
EB-5 stakeholder inquiries and requests for assistance. The branch manages IPO’s stakeholder
engagement plan to ensure that public engagements provide information that is accurate,
responsive, and reflective of stakeholder interest. The Stakeholder Engagement Branch has
already made significant progress in responding to stakeholder inquiries and resolving issues.

Response to the OIG Report

The CISOMB cited the December 2013 Office of Inspector General (OIG) report titled “United
States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5)
Regional Center Program,”!” and OIG’s recommendations to strengthen the EB-5 program.
USCIS is working diligently to implement the agreed upon recommendations, including:

e Establishing memoranda of understanding with partner agencies;
e Strengthening quality assurance processes;

e Working with the Department of Commerce to plan an assessment of the EB-5 program
and its value to the U.S. economy; and

e Drafting potential regulatory changes to clarify the regulatory requirements for eligibility
and provide additional tools to strengthen the EB-5 program.

IV. HUMANITARIAN

A. USCIS Processing of Immigration Benefits for Victims of Domestic Violence,
Trafficking, Sexual Assault, and Other Violent Crimes

As noted in the Annual Report, USCIS made significant progress reducing processing times for:

e Form I-914 (T), Application for T Nonimmigrant Status;
e Form I-918 (U), Petition for U Nonimmigrant Status; and
e Form I-360 (VAWA), Petition for Amerasian, Widow(er), or Special Immigrant.

USCIS provided its officers with training on the administration of its humanitarian programs,
and USCIS is working to reduce processing times even further. USCIS recognizes that the
humanitarian programs provide critical relief and protection to victims of certain crimes, and
USCIS is committed to ensuring those who are eligible for these benefits receive them in a fair
and consistent manner. As noted in the Annual Report, USCIS has made a significant investment
in engaging with community-based stakeholders, law enforcement, and government agencies to
ensure a better understanding of our humanitarian relief programs and processes. These efforts

'° DHS Office of Inspector General Report, “U.S. Citizenship and Immigration Services’ Employment-Based Fifth
Preference (EB-5) Regional Center Program,” available at http://www.oig.dhs.gov/assets/Mgmt/2014/O1G_14-

19_Decl3.pdf.



USCIS Response to the Citizenship and Immigration Services Ombudsman’s
2014 Annual Report to Congress

In her Annual Report, the CISOMB asserts that USCIS lacks a standardized process for
receiving and processing humanitarian reinstatements and INA 204(1) relief requests and that the
procedures for submitting such requests vary by office. The CISOMB further notes that USCIS
does not use a standard form for these requests and the information on its website is unclear.

USCIS did not develop a specific form for humanitarian reinstatements because it would have
delayed implementation of INA 204(1). USCIS believes the benefit of allowing people to seek
relief immediately under INA 204(1) through existing processes” outweighed the benefit of
developing a specific form. However, USCIS does plan to explore the feasibility of creating an
official form for submitting such requests. USCIS will also review the INA 204(1) and
humanitarian reinstatement guidance on the agency’s website to identify areas where additional
clarity may be needed.

Processing Inconsistencies and Delays

In her Annual Report, the CISOMB states that USCIS has difficulty determining which office
has jurisdiction over a request and that denials do not provide meaningful information. The
CISOMB also says that USCIS improperly requires a beneficiary seeking humanitarian
reinstatement to file Form I-290B, Notice of Appeal or Motion, to seek review of a denied
request.

During the fourth quarter of FY15 or first quarter of FY16, USCIS plans to conduct humanitarian
reinstatement and INA 204(1) training for all four service centers. This training will be followed
by a series of weekly roundtable discussions, which will increase consistency in adjudication.
USCIS will also work to standardize templates used for RFEs and denial notices. It is important
to note that if a request for relief under humanitarian reinstatement or INA 204(1) is denied, filing
a Form I-290B, with fee, is the standard procedure to have the decision reopened or
reconsidered. The CISOMB previously contacted USCIS about this issue, and USCIS provided
clarification both to the CISOMB and to USCIS officers on May 27, 2014.

Confusion Between Humanitarian Reinstatement and INA 204(I) Relief

In her Annual Report, the CISOMB asserts that USCIS fails to distinguish between the two types
of relief available and treats cases involving humanitarian reinstatement and relief under INA
204(1) interchangeably. The CISOMB states that USCIS sometimes requires people who are
eligible for consideration of relief under INA 204(1) to supply humanitarian and hardship
documentation that should only be required for humanitarian reinstatement under 8 CFR

205.1(a)(3)(G)(C).

Discretionary factors considered in humanitarian reinstatement are different from those
considered in INA 204(1) requests. If a beneficiary meets the residence requirements, INA 204(1)
supports a discretionary denial only if USCIS finds that relief is not in the public interest.

"2 See USCIS Web page, “Basic Eligibility for Section 204(1) Relief for Surviving Relatives,” available at
http://www.uscis.gov/green-card/green-card-through-family/basic-eligibility-section-2041-relief-surviving-relatives.

11