Annual Report 2015

Citizenship and Immigration Services

Ombudsman

June 29, 2015
Annual Report 2015

Citizenship and Immigration Services

Ombudsman

June 29, 2015
ii | ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | iii

Office of the Citizenship and Immigration Services 

Ombudsman

U.S. Department of Homeland Security

Mail Stop 0180

Washington, DC 20528-0180

June 29, 2015

The Honorable Charles Grassley

Chairman

Committee on the Judiciary

United States Senate

Washington, DC 20510

The Honorable Patrick J. Leahy

Ranking Member

Committee on the Judiciary

United States Senate

Washington, DC 20510

The Honorable Bob Goodlatte

Chairman

Committee on the Judiciary

United States House of Representatives

Washington, DC 20515

The Honorable John Conyers, Jr.

Ranking Member

Committee on the Judiciary

United States House of Representatives

Washington, DC 20515

Dear Chairmen and Ranking Members:

The Office of the Citizenship and Immigration Services Ombudsman is pleased to submit, pursuant to 

section 452(c) of the Homeland Security Act of 2002, its 2015 Annual Report.

I am available to provide additional information upon request.

Sincerely,

Maria M. Odom

Citizenship and Immigration Services Ombudsman
iv | ANNUAL REPORT TO CONGRESS JUNE 2015

Message from the Ombudsman

The 2015 reporting 

period was a momentous 

one for immigration. 

On November 20, 

2014, President Obama 

announced significant new 

executive actions to help 

fix our broken immigration 

system. Among the 

initiatives are new 

enforcement priorities and 

an expansion of programs 

vital to family unity. While 

the executive actions are no replacement for the legislative 

reform our immigration system desperately needs, they will 

help ameliorate barriers faced by individuals and employers 

seeking immigration benefits and services. I am honored 

to serve in the Department of Homeland Security under 

Secretary Jeh Johnson’s leadership, and I am proud of the 

many dedicated public servants who work tirelessly to 

improve our nation’s immigration programs. 

Although the new initiatives, known as expanded DACA 

and DAPA, were halted due to court orders,1 USCIS 

published policy guidance and regulations to improve 

existing programs, including the much anticipated L-1B 

Specialized Knowledge draft guidance and final regulations 

extending work authorization to certain spouses of H-1B 

visa holders. The agency launched two new humanitarian 

programs to support family unity and help prevent travel by 

unaccompanied children from Central America: the Haitian 

Family Reunification Parole Program and the In-Country 

Refugee/Parole Program for Central American Minors. 

In response to the high number of children arriving at the 

Southwest border last summer, USCIS asylum officers 

have acted diligently to process their cases and to ensure 

that women and children in detention are afforded the 

opportunity to express a fear of returning to their home 

countries and seek asylum in the United States. The 

agency’s efforts to serve vulnerable populations and protect 

the integrity of our asylum system should be commended 

and supported. 

1 As of the date of publication of this Report, implementation of expanded 

Deferred Action for Childhood Arrivals (DACA) and Deferred Action for 

Parents of Americans and Lawful Permanent Residents (DAPA) has been 

halted following a preliminary injunction. Texas v. USA, 15-40238 (5th Cir. 

May 26, 2015)(order denying stay of preliminary injunction).

An ambitious undertaking, the executive actions demanded 

the attention of USCIS Director León Rodriguez and 

many key leaders in the immigration service. At the same 

time, longstanding challenges in existing immigration 

programs likewise require agency attention and action. In 

last year’s Annual Report, we discussed in detail Requests 

for Evidence (RFEs) that are too often vague, unduly 

burdensome, or unnecessary. Such RFEs continue to 

delay adjudications and burden applicants and petitioners, 

particularly in the provisional waiver program and key 

employment-based categories. Providing adequate notice 

regarding filing deficiencies is essential to the effectiveness 

of RFEs, but they are often general and fail to address 

evidence already in the record. This is especially important 

in cases in which customers are not afforded the option of 

an appeal or a motion to reopen or reconsider. 

During this reporting year, my office received numerous 

examples of Special Immigrant Juvenile petitions in which 

USCIS requested a wide range of records pertaining to 

the underlying state court dependency order, essentially 

second-guessing the state court action. We believe these 

RFEs are inconsistent with USCIS’ limited statutory 

“consent authority,” and the agency’s own training 

materials. I strongly encourage USCIS to engage 

with stakeholders serving unaccompanied children to 

better understand the impact of its current adjudicatory 

practices. In the coming weeks, we will publish formal 

recommendations to improve processing of petitions for 

Special Immigrant Juveniles. 

Since December 2014, the Ombudsman’s Office has 

worked to resolve nearly 1,500 requests for case assistance 

from DACA renewal applicants facing expiration of their 

deferred action and accompanying work authorization 

due to processing delays. Requests for assistance came 

from a young man supporting a disabled parent, a new 

public school teacher in the Midwest, a low-income 

applicant facing eviction from his apartment, and an 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | v

expectant mother about to lose her health benefits due to 

the imminent loss of employment caused by delays in her 

DACA renewal. As is the case for many applicants facing 

a lapse in work authorization, processing delays threaten 

people’s livelihoods and can disrupt their education, 

healthcare benefits, driving privileges, and even housing 

and food stability. Administrative processing delays must 

not undermine a program that has enabled young people—

Americans in every way but on paper—to realize their full 

potential in our workforce and our communities.

In addition to DACA renewal delays, our office continued 

to receive requests for assistance from other applicants 

seeking to renew employment authorization. Though a 

small percentage of the total number processed each year, 

thousands of applications for employment authorization 

remained pending past the 90-day regulatory processing 

time. I urge USCIS to adopt measures that facilitate a 

more orderly and predictable renewal process for DACA 

and other employment authorization applicants. We will 

continue to present recommendations to help achieve 

these goals. 

In this year’s Report, we discuss again backlogs in the 

asylum program, the strains these place on applicants and 

their families, and the current efforts to address them. 

This Report also addresses adjudications issues in other 

programs for vulnerable populations, including victims of 

violence, and the need for a parole program for conditional 

U visa grantees who are often in danger in their home 

countries while awaiting visa availability. 

In the EB-5 immigrant investor program, backlogs grew 

and many cases remained pending long past the 11 to 

14-month processing time goals. Projects languished and 

job creation was stalled because of these delays. 

Last year, our Annual Report highlighted the agency’s 

accomplishments in the area of stakeholder outreach. 

Public engagement should remain fundamental to 

developing new policy and initiatives. It is my hope that 

this area in which the agency has made great strides in 

the past will continue to be prioritized as a core function 

of USCIS.

At this inflection point in the history of our nation’s 

immigration policy, I believe more than ever in the 

Ombudsman’s statutory charge of assisting individuals and 

employers with problems with USCIS both through case 

assistance and policy recommendations. But we cannot 

achieve this mandate alone. Every day the Ombudsman 

staff works with dedicated USCIS officers from around the 

country to provide high-quality services for customers who 

may not have experienced USCIS at its best. I very much 

appreciate our USCIS colleagues for their collaboration in 

this important work. 

I want to thank Secretary Johnson and Deputy Secretary 

Alejandro Mayorkas for their unflinching support of the 

Ombudsman’s mission, and Director Rodriguez for his 

partnership in pursuing our shared goal of an immigration 

service built on fairness and integrity. I am also grateful for 

the entire team in the Ombudsman’s office who honor our 

mission by helping individuals and employers navigate our 

immigration system and without whom publication of this 

in-depth report would not be possible. 

Sincerely,

Maria M. Odom

Citizenship and Immigration Services Ombudsman
vi | ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | vii

I. Legislative Requirement

Section 452 of the Homeland Security Act of 2002, 

6 U.S.C. § 272, provides in relevant part:

(c) ANNUAL REPORTS—

1) OBJECTIVES—Not later than June 30 of each 

calendar year, the Ombudsman shall report to 

the Committee on the Judiciary of the House of 

Representatives and the Senate on the objectives of the 

Office of the Ombudsman for the fiscal year beginning 

in such calendar year. Any such report shall contain 

full and substantive analysis, in addition to statistical 

information, and—

(A) Shall identify the recommendation the Office of the 

Ombudsman has made on improving services and 

responsiveness of the Bureau of Citizenship and 

Immigration Services;

(B) Shall contain a summary of the most pervasive and 

serious problems encountered by individuals and 

employers, including a description of the nature of 

such problems;

(C) Shall contain an inventory of the items described in 

subparagraphs (A) and (B) for which action has been 

taken and the result of such action;

(D) Shall contain an inventory of the items described in 

subparagraphs (A) and (B) for which action remains to 

be completed and the period during which each item 

has remained on such inventory;

(E) Shall contain an inventory of the items described in 

subparagraphs (A) and (B) for which no action has been 

taken, the period during which each item has remained 

on such inventory, the reasons for the inaction, and 

shall identify any official of the Bureau of Citizenship 

and Immigration Services who is responsible for such 

inaction;

(F) Shall contain recommendations for such administrative 

action as may be appropriate to resolve problems 

encountered by individuals and employers, including 

problems created by excessive backlogs in the 

adjudication and processing of immigration benefit 

petitions and applications; and

(G) Shall include such other information as the Ombudsman 

may deem advisable.

2) REPORT TO BE SUBMITTED DIRECTLY—Each 

report required under this subsection shall be provided 

directly to the committees described in paragraph (1) 

without any prior comment or amendment from the 

Secretary, Deputy Secretary, Director of the Bureau 

of Citizenship and Immigration Services, or any other 

officer or employee of the Department or the Office of 

Management and Budget.
viii | ANNUAL REPORT TO CONGRESS JUNE 2015

Executive Summary

The Office of the Citizenship and Immigration Services 

Ombudsman’s (Ombudsman) 2015 Annual Report contains:

M An overview of the Ombudsman’s mission and services;

M A review of U.S. Citizenship and Immigration Services 

(USCIS) programmatic and policy achievements during 

this reporting period; and

M A detailed discussion of pervasive and serious problems, 

recommendations, and best practices in the family, 

employment and humanitarian areas, as well as in 

customer service. 

Ombudsman’s Office Overview 

In the 2015 reporting period, April 1, 2014 to March 

31, 2015, the Ombudsman received 7,555 requests for 

assistance, an increase of over 23 percent from the 2014 

reporting period. Approximately 96 percent of case 

assistance requests during the reporting period were 

received through the Ombudsman’s Online Case Assistance 

system. Overall, 38 percent of the requests were for 

humanitarian-based matters; 23 percent for family-based 

matters; 24 percent for employment-based matters; and 

15 percent for general immigration matters, such as 

applications for naturalization. The Ombudsman seeks to 

review all incoming case assistance requests within 30 days 

and take action to resolve 90 percent of inquiries within 

90 days of receipt. Notably, the Ombudsman received 

1,151 requests for case assistance involving processing 

times for Deferred Action for Childhood Arrivals (DACA) 

renewal adjudications—approximately 15 percent of all 

case assistance requests handled by the Ombudsman for 

the reporting period. Employment authorization inquiries 

(not related to DACA) were the next largest source of 

requests for case assistance, comprising 12 percent of the 

Ombudsman’s casework. 

The Year in Outreach

From April 2014 to March 2015, the Ombudsman 

conducted 84 stakeholder engagements in regions across 

the United States, reaching thousands of stakeholders. 

To inform stakeholders of new initiatives and receive 

feedback on a variety of topics, the Ombudsman hosted six 

public teleconferences in the 2015 reporting period. On 

November 6, 2014, the Ombudsman held its fourth Annual 

Conference, featuring Secretary of Homeland Security 

Jeh Johnson as keynote speaker as well as an “armchair” 

discussion with USCIS Director León Rodriguez. The 

Ombudsman continued to promote interagency liaison 

through monthly meetings with the Department of State 

(DOS) and USCIS on the management of the visa queues; 

quarterly data quality working group meetings with 

USCIS, U.S. Customs and Border Protection (CBP), U.S. 

Immigration and Customs Enforcement (ICE), and the 

DHS Office of the Chief Information Officer to facilitate 

problem-solving related to the Systematic Alien Verification 

for Entitlements (SAVE) program; and a working group 

with the Department of Labor (DOL), DOS, and USCIS 

representatives on H-2 Temporary Worker processing 

issues, among other interagency meetings.

DHS Blue Campaign

Ombudsman Odom serves as Chair of the Blue Campaign 

Steering Committee (Blue Campaign), the Department’s 

unified effort to combat human trafficking. The Blue 

Campaign brings together resources and expertise from 

across DHS components, while harnessing partnerships 

with a network of other governmental and non-governmental 

organizations. The Ombudsman’s Office provides subject 

matter expertise to the Blue Campaign and helps organize 

stakeholder events that address pressing trafficking and 

immigration 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. In addition, the 

Ombudsman conducts regular stakeholder engagements 

with service providers to understand and address systemic 

concerns with the immigration benefits process for victims 

of trafficking and other crimes. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | ix

Key Developments and 

Areas of Focus

Executive Immigration Reform

On November 20, 2014, President Obama announced 

a series of executive actions to “fix our nation’s broken 

immigration system.” Secretary Johnson published at 

that same time multiple policy memoranda to implement 

the announced executive immigration reforms. USCIS, 

along with CBP and ICE, is responsible for carrying out 

these actions. These include new USCIS initiatives as 

well as new regulations and policies for enforcement, 

families, and businesses hiring foreign workers. Planning 

and implementation of these initiatives, as well as ensuing 

litigation, have dominated USCIS’ attention for much of the 

reporting period.

Families and Children

Deferred Action for Childhood Arrivals 

This reporting period marks the third year of the DACA 

program. DACA has allowed more than 664,300 young 

people who were brought to the United States as children 

to live, study, and work legally in this country. During the 

reporting period, the Ombudsman received 1,151 requests 

for case assistance from DACA renewal applicants who 

temporarily lost or were on the verge of losing employment 

authorization. A sample of requests for assistance 

submitted to the Ombudsman showed the following:

M 77 percent involved the expiration of the deferred action 

period and employment authorization before a decision 

was issued; and 

M Of the requests with a lapse, over 30 percent were filed 

timely—at least 120 days before the expiration of the initial 

DACA period. Another 42 percent of these requests were 

not timely filed, but the applications remained pending past 

the processing time goal of 120 days or more before a 

decision was issued. 

The Ombudsman urges USCIS to provide for automatic 

temporary extension of employment authorization upon 

timely receipt of the DACA renewal application, or take 

other measures to ensure that individuals previously 

granted DACA do not suffer the impact of a lapse in 

employment authorization or accrue unlawful presence, 

both of which carry significant adverse consequences.

Provisional and Other Immigrant Waivers 

The Provisional Waiver program helps alleviate problems 

of family separation and unpredictable processing times 

that were endemic to the prior system of overseas filing of 

waivers for immigrant visa applicants. In 2012 and 2013, 

USCIS consolidated Form I-601, Application for Waiver 

of Grounds of Inadmissibility processing in one USCIS 

service center and implemented a stateside provisional 

waiver for immediate relatives of U.S. citizens who must 

consular process abroad. On November 20, 2014, Secretary 

Johnson published a memorandum titled Expansion of 

the Provisional Waiver Program, instructing USCIS to 

amend its 2013 regulation to expand the Provisional Waiver 

program to all statutorily eligible applicants. Requests for 

case assistance submitted to the Ombudsman, as well as 

information provided by stakeholders and USCIS during 

this reporting period, continue to demonstrate concerns 

with: summary denials in “reason to believe” cases, either 

on criminal, fraud, smuggling, or prior unlawful presence 

and reentry grounds; Requests for Evidence (RFEs) that 

do not assess particular evidence previously provided by 

the applicant; inconsistent application of the “extreme 

hardship” standard; and the lack of any administrative 

appeal or other mechanism to correct administrative error. 

When the regulations are revised to expand the Provisional 

Waiver program, pursuant to Secretary Johnson’s recent 

memorandum, the Ombudsman urges USCIS to afford 

applicants the option to file Motions to Reopen/Reconsider 

or an appeal.
x | 

Extreme Hardship

Secretary Johnson’s Memorandum on November 20, 2014, 

also directed USCIS to clarify the factors contemplated in 

determining whether the “extreme hardship” standard has 

been met, and to consider criteria by which a presumption 

of extreme hardship may be determined to exist such that 

it would provide for broader use of the waiver. These 

changes will improve the program and assist numerous 

families who would have otherwise faced long periods of 

separation as they waited for processing of their waivers 

from overseas.

Military Immigration Issues 

Members of Congress and U.S. military leaders have 

consistently emphasized to DHS that military immigration 

issues, including military naturalization, regularization 

of military dependent immigration status, and preserving 

military family unity are critical aspects of military readiness. 

The Ombudsman strongly supports USCIS efforts to assist 

the Armed Forces of the United States and their immigrant 

family members. 

The Haitian Family Reunification Parole Program

On December 18, 2014, USCIS implemented the Haitian 

Family Reunification Parole program to expedite family 

reunification for certain Haitian family members of U.S. 

citizens and Lawful Permanent Residents and to promote a 

safe, legal, and orderly migration from Haiti to the United 

States. The program will allow eligible Haitians who are 

beneficiaries of an approved Form I-130, Petition for Alien 

Relative to join family members in the United States up 

to 2 years before their immigrant visas become available. 

Through this program, DHS anticipates paroling 5,000 

Haitians into the United States by 2016.

Employment

The H-2 Temporary Worker Programs

While USCIS approved over 20,000 employer petitions 

for H-2 workers in FY 2014, the Ombudsman continued 

to receive reports of processing delays in both the H-2A 

agricultural temporary worker and H-2B nonagricultural 

temporary worker programs. Such delays can have 

severe economic consequences for petitioning U.S. 

employers. From the employer’s perspective, the fact 

that three separate agencies govern the H-2 processes 

can be perplexing. These agencies—DOL, DOS, and 

USCIS—generally perform their individual program steps 

autonomously. To explore areas of collaboration in 

the H-2 programs, the Ombudsman convened an 

interagency working group, and continues to encourage 

coordination and more efficient practices, especially in 

USCIS processing. 

High-Skilled Adjudication Issues

As discussed in Annual Reports since 2008, stakeholders 

continue to raise concerns with USCIS adjudication of 

nonimmigrant petitions for high-skilled beneficiaries, 

including H-1B (Specialty Occupations), L-1A 

(Intracompany Transferee Managers or Executives), L-1B 

(Specialized Knowledge Worker), and O-1 (Individuals 

with Extraordinary Ability or Achievement). Specifically, 

employers and their representatives provide examples to the 

Ombudsman of RFEs that appear to be redundant, seeking 

documentation that was previously provided; unnecessary, 

requesting information that is irrelevant or exceeds 

what is needed to complete the adjudication; and unduly 

burdensome in scope or intrusiveness. Notably, on March 

23, 2015, USCIS issued the long awaited L-1B Policy 

Guidance Memorandum in draft form with a scheduled 

implementation date of August 31, 2015.

The EB-5 Immigrant Investor Program

The EB-5 Immigrant Investor Program has surged in 

popularity in recent years as an effective way to attract 

foreign investment, to provide financing to large private 

and public projects, and for foreign nationals to obtain 

lawful permanent residency in the United States. While 

USCIS has hired new adjudicators and economists, it had 

12,749 investor petitions (Form I-526, Immigrant Petition 

by Alien Entrepreneur) in its pending inventory as of March 

31, 2015, with nearly 20 percent pending adjudication 

for more than a year; EB-5 processing times have been 

getting longer. USCIS has provided technical assistance 

to Congress and is actively working with other DHS and 

government agencies to put safeguards in place to ensure 

program integrity.

Seasonal Delays in Employment Authorization Processing

Eligible individuals in the United States may apply 

for employment authorization by filing Form I-765, 

Application for Employment Authorization with USCIS. 

Applicants who receive Employment Authorization 

Documents (EAD) are then able to commence (or resume) 

employment, as well as apply for Social Security Numbers 

and driver’s licenses. USCIS received 1,477,898 Forms 

I-765 in the reporting period. While the agency adjudicates 

the vast majority of applications for EADs within the 

90-day regulatory processing timeframe, every year 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

thousands of eligible individuals encounter processing 

delays. When processing of employment authorization 

applications is delayed, both individuals and their current 

or would-be employers suffer adverse consequences. 

Ombudsman data reveal a seasonal pattern with an increase 

in requests for case assistance in the summer months due to 

adjudications that exceed the agency’s 90-day processing 

requirement. This section provides suggested steps 

USCIS could take to address these seasonal employment 

authorization processing delays.

Employment-Based Immigrant Petition 

(Form I-140) Processing

Stakeholders continue to report concerns pertaining to 

USCIS’ handling of employment-based immigrant petitions. 

With extensive backlogs in certain employment-based 

preference categories due to statutory visa caps and potential 

changes to USCIS policies on petitioner-beneficiary rights, 

it is imperative that USCIS maintain clear and consistent 

communication with its stakeholders. In recent months, 

USCIS has taken steps to review its longstanding policy 

on who is an “affected party” when it comes to appealing 

a decision of a Form I-140, Immigrant Petition for Alien 

Worker. The Ombudsman encourages USCIS to consider 

the significant case law and recognize legal standing for 

certain beneficiaries of a Form I-140 petition. 

Humanitarian

Special Immigrant Juveniles

The Special Immigrant Juvenile (SIJ) program is 

designed to help children in the United States who 

have been abused, abandoned, or neglected to obtain 

lawful permanent residency status. The program has 

seen significant policy and legislative changes over the 

years. Stakeholders report and the Ombudsman has 

observed adjudication inconsistencies regarding consent 

requirements, age-inappropriate interviewing techniques, 

and delayed processing times for SIJ adjudications. 

USCIS continues to seek evidence underlying state 

court dependency orders. The Ombudsman continues 

to receive reports from stakeholders experiencing 

difficulties with pending or recently adjudicated petitions. 

In the coming weeks, the Ombudsman intends to issue 

formal recommendations that USCIS: (1) centralize 

SIJ adjudication to improve the quality and consistency 

of decisions; and (2) issue updated regulations to 

clarify policy guidance and the limitations of USCIS’s 

consent authority. These steps would substantially 

improve adjudications and end the agency’s current 

practices of seeking evidence underlying state court 

dependency orders.

The Affirmative Asylum Backlog

A substantial backlog of affirmative asylum applications 

pending before USCIS has led to lengthy case processing 

times for tens of thousands of asylum seekers. Spikes in 

requests for reasonable and credible fear determinations, 

which have required the agency to redirect resources away 

from affirmative asylum adjudications, along with an uptick 

in new affirmative asylum filings, are largely responsible 

for the backlog and processing delays. Although USCIS 

has taken various measures to address these pending asylum 

cases, such as hiring additional staff, modifying scheduling 

priorities, and introducing new efficiencies into credible and 

reasonable fear adjudications, the backlog continues to mount.

Immigration Benefits for Victims of Domestic Violence, 

Trafficking, and Other Violent Crimes

Victims of domestic violence, human trafficking, and other 

specified crimes may seek humanitarian immigration relief. 

Specifically, these programs include U nonimmigrant status, 

T nonimmigrant status, and self-petitioning for adjustment of 

status under the Violence Against Women Act (VAWA). The 

Ombudsman continues to monitor processing times, quality 

of RFEs and adjudications, and outreach to this vulnerable 

population.

Fee Waiver Processing Issues

USCIS’ Office of Intake and Document Production, which 

supports both the Field Operations and Service Center 

Operations Directorates, administers the system of fee 

waivers for immigration applications. Fee waivers are 

critical to populations who cannot access immigration 

benefits because of their inability to afford the required 

fees, including elderly, indigent, or disabled applicants. 

This year’s Report summarizes ongoing problems 

experienced by individuals requesting fee waivers.

Humanitarian Reinstatement for Surviving Relatives Under 

Immigration and Nationality Act Section 204(l) and the 

Regulations 

For immigrant families, the death of a family member 

often triggers an inability of surviving family members to 

seek immigration status because USCIS revokes approved 

family-based petitions automatically upon the death of the 

sponsoring petitioner. Besides the avenue of relief open 

xi
xii | 

to widow/widowers of U.S. citizens, there are two types 

of remedies that may preserve the surviving relative’s 

ability to immigrate: statutory reinstatement under the 

Immigration and Nationality Act (INA) section 204(l), 

and humanitarian reinstatement under the regulations. 

Stakeholders have reported to the Ombudsman, among 

other issues, the following: variances and long delays 

in the handling of INA section 204(l) and humanitarian 

reinstatement requests; inability to ascertain which 

office will take jurisdiction over such requests; difficulty 

determining receipt of requests by USCIS; rejection of 

requests by service center mailrooms; template denials; 

confusion between humanitarian reinstatement and INA 

section 204(l) requirements; and the inability of pro se

applicants to overcome these challenges to seeking relief. 

These and other concerns continue in this reporting period.

In-Country Refugee/Parole Program for Central 

American Minors

In recent years, unprecedented numbers of unaccompanied 

minors from Central America have been apprehended crossing 

the U.S. southern border. Many of these children suffer 

violence and exploitation during their cross-country passage. 

Through the newly-established Refugee/Parole Program 

for Central American Minors (CAM), qualifying parents 

who reside in the United States and have children in Central 

America can petition for those children to join them stateside 

as refugees or parolees. This program offers vulnerable youth 

in this region the prospect of protection in the United States 

without a dangerous trek to the U.S. border. 

Interagency, Process Integrity and Customer Service

Customer Service: Ensuring Proper Delivery of Notices 

and Documents

Every year, USCIS sends millions of notices, decisions, 

and documents to applicants and petitioners and their 

attorneys through the U.S. Postal Service (USPS). Some 

of these mailings inform individuals of a required next 

step in the application process for an immigration benefit, 

such as fingerprinting, an interview, or an RFE. When time 

sensitive notices are not received, individuals often do not 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

take the required action, and the application or petition may 

be denied for abandonment. USCIS also mails decision 

notices and immigration documents, including EADs, 

Travel Documents, and Permanent Resident Cards, which 

when not properly delivered can leave individuals without 

the ability to obtain or renew their driver’s licenses, apply 

for Social Security Numbers, start or continue employment 

without interruption, or travel outside of the United States. 

The proper delivery of documents and effectiveness of 

USCIS’ change of address systems are thus critical. 

Issues with USCIS Intake of Form G-28, Notice of Entry of 

Appearance as Attorney or Accredited Representative

The Ombudsman frequently hears concerns from attorneys 

that Form G-28, Notice of Entry of Appearance as Attorney 

or Accredited Representative is not properly recorded 

when submitted after an application or petition has been 

filed with USCIS. Similarly, stakeholders bring cases to 

the Ombudsman’s attention where notices of withdrawal 

of representation are not captured in USCIS systems, and 

attorneys continue to receive notices as the attorney of 

record. The Ombudsman discussed issues with rejections 

of Forms G-28 in the 2014 Annual Report; USCIS has yet 

to implement procedures to provide notice to an applicant/

petitioner or to the attorney or accredited representative 

upon rejection of a Form G-28. Failure to properly record 

the legal representative may prevent individuals and 

employers from receiving notice of USCIS actions or the 

delivery of secure documents. It raises concerns pertaining 

to an individual’s right to counsel.

Calculating Processing Times

Both USCIS and the Ombudsman use the processing times 

posted on USCIS’ website to manage customer inquiries and 

make decisions that impact customer service. When posted 

processing times do not accurately reflect actual processing 

times, those seeking immigration benefits naturally become 

frustrated, are unable to make personal or professional plans, 

and make inquiries to USCIS through the National Customer 

Service Center (NCSC) and at InfoPass appointments, 

as well as submit requests for case assistance from the 

Ombudsman and Congressional offices. The Ombudsman 

has brought these concerns to USCIS, and urges the agency 

to consider new approaches to calculating case processing 

times that more accurately convey to individuals and 

employers how long a case will take to be adjudicated and 

where the case is within the processing queue.

Transformation: Modernizing USCIS Systems, Case 

Processing, and Customer Service 

USCIS’ effort to reengineer business processes from paperbased adjudications to an electronic environment is known 

as “Transformation.” By March 2015, 1.1 million customers 

had used available Transformation processes, such as setting 

up user accounts, paying the immigrant visa fee, filing for 

immigration benefits, or tracking applications and petitions 

through the USCIS Electronic Immigration System (ELIS). 

Long before the majority of form types are scheduled to 

be available through Transformation, however, the agency 

is significantly re-designing its new system’s architecture, 

and has just discontinued temporarily the electronic filing in 

USCIS ELIS of Form I-539, Application to Extend/Change 

Nonimmigrant Status, and Form I-526.

xiii
xiv | ANNUAL REPORT TO CONGRESS JUNE 2015

Table of Contents

Letter to Congress..................................................................................................................................................................... iii

Message from the Ombudsman................................................................................................................................................ iv

Legislative Requirement.......................................................................................................................................................... vii

Executive Summary................................................................................................................................................................ viii

Ombudsman’s Office: The Year in Review...............................................................................................................................2

Ombudsman’s Office Overview....................................................................................................................................2

The Ombudsman’s Case Assistance ..............................................................................................................................5

The Year in Outreach.....................................................................................................................................................7

DHS Blue Campaign.....................................................................................................................................................8

Key Developments and Areas of Focus ...................................................................................................................................12

Executive Immigration Reform...................................................................................................................................13

Families and Children........................................................................................................................................................16

Renewals of Deferred Action for Childhood Arrivals ................................................................................................17

Provisional and Other Immigrant Waivers ..................................................................................................................21

Extreme Hardship........................................................................................................................................................25

Military Immigration Issues........................................................................................................................................29

The Haitian Family Reunification Parole Program ....................................................................................................32

Business and Employment.................................................................................................................................................34

The H-2 Temporary Worker Programs ........................................................................................................................35

High-Skilled Adjudication Issues................................................................................................................................39

The EB-5 Immigrant Investor Program ......................................................................................................................46

Seasonal Delays in Employment Authorization Processing .......................................................................................48

Employment-Based Immigrant Petition (Form I-140) Processing .............................................................................50
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 1

Humanitarian......................................................................................................................................................................54

Special Immigrant Juveniles.......................................................................................................................................55

The Affirmative Asylum Backlog ...............................................................................................................................59

Immigration Benefits for Victims of Domestic Violence, Trafficking, and Other Violent Crimes ............................63

Fee Waiver Processing Issues......................................................................................................................................66

Humanitarian Reinstatement for Surviving Relatives Under Immigration and Nationality Act Section 204(l) 

and the Regulations............................................................................................................................................69

In-country Refugee/Parole Program for Central American Minors ...........................................................................72

Interagency, Customer Service, and Process Integrity ......................................................................................................78

Customer Service: Ensuring Proper Delivery of Notices and Documents .................................................................79

Issues with USCIS Intake of Form G-28, Notice of Entry of Appearance as Attorney or Representative ................83

Calculating Processing Times.....................................................................................................................................84

Transformation: Modernizing USCIS Systems, Case Processing, and Customer Service .......................................86

Appendices ...............................................................................................................................................................................90

Recommendations Updates ........................................................................................................................................90

The Ombudsman by the Numbers .............................................................................................................................92

Homeland Security Act Section 452 ...........................................................................................................................95

Requests for Case Assistance: Scope of Assistance Provided to Individuals .............................................................96

Ombudsman Request for Case Assistance Process .....................................................................................................98

Acronyms....................................................................................................................................................................99
2 | ANNUAL REPORT TO CONGRESS JUNE 2015

Ombudsman’s Office: The Year In Review

Ombudsman’s Office Overview 

The mission of the Office of the Citizenship and Immigration 

Services Ombudsman (Ombudsman)1

 is to: 

1 In this Report, the term “Ombudsman” refers interchangeably to the 

Ombudsman’s staff and the office.

M Assist individuals and employers in resolving problems 

with U.S. Citizenship and Immigration Services (USCIS);

M Review USCIS policies and procedures to identify areas 

in which individuals and employers have problems in 

dealing with USCIS; and

M Propose changes in the administrative practices of USCIS 

to mitigate identified problems.2

2 Homeland Security Act of 2002 (HSA) § 452, Pub. L. No. 107-296. 

Critical to achieving this mandate is the Ombudsman’s 

role as an independent, impartial and confidential resource 

within the Department of Homeland Security (DHS). 

M Independent. The Ombudsman is an independent DHS 

office, reporting directly to the DHS Deputy Secretary; 

the Ombudsman is not a part of USCIS. 

M Impartial. The Ombudsman works in a neutral, impartial 

manner to improve the delivery of immigration benefits 

and services.

M Confidential. Individuals and employers seeking 

assistance from the Ombudsman may do so in 

confidence. Any release of confidential information is 

based on prior consent, unless otherwise required by law 

or regulation. 

The Ombudsman performs its mission by: 

M Evaluating individual requests for case assistance and 

recommending that USCIS engage in corrective actions, 

where appropriate;

M Identifying trends in requests for case assistance, reviewing 

USCIS operations, researching applicable legal authorities, 

and writing formal recommendations or informally bringing 

systemic issues to USCIS’ attention for resolution; and 

M Facilitating interagency collaboration, and conducting 

outreach to a wide range of public and private 

stakeholders. 

For Fiscal Year (FY) 2015, Congress approved and the 

President signed into law a program increase for the 

Ombudsman for five new positions and a team dedicated 

to employment case resolution.3

 This funding partially 

restored prior budget reductions, and as described in detail 

below, follows significant increases in requests for case 

assistance. The Ombudsman is pleased that the enacted 

FY 2015 budget level reaffirms its mission and work, and 

provides resources needed to provide timely, effective case 

resolution services. 

3 Department of Homeland Security Appropriations Act of 2015, Pub. L. No. 

114-4 (2015).

Pursuant to its statutory mandate, the Ombudsman identifies 

areas in which individuals and employers have problems in 

dealing with USCIS and, to the extent possible, proposes 

changes in administrative practices to mitigate these 

problems. Recommendations are developed based on:

M Trends in requests for case assistance;

M Feedback from individuals, employers, communitybased organizations, trade and industry associations, faith 

communities and immigration professionals from across 

the country; and

M Information and data gathered from USCIS and other 

agencies.

Requests for Case Assistance

Pursuant to its statutory mission, the Ombudsman assists 

individuals and employers in resolving problems with 

USCIS,4

 which administers an immigration benefits 

system with millions of applications and petitions 

annually. Individuals and employers rely on USCIS 

4 HSA § 452(b)(1). 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

adjudications to reunite with family members; begin or 

continue employment; receive humanitarian protection; 

apply for driver’s licenses, Social Security Numbers, 

health insurance, bank accounts, and mortgages; transfer 

key employees; enroll in school; and travel outside of the 

United States, to name but a few essential activities. In 

short, applicants’ lives are often on hold while waiting for 

the benefits from USCIS for which they may qualify. 

USCIS adjudicates the majority of filings timely and 

in accordance with applicable statutes, regulations, and 

policy. However, when cases are delayed past posted 

processing times or there are administrative or adjudication 

errors, individuals and employers may contact the 

Ombudsman for case assistance after first attempting to 

resolve the issue with USCIS.

During the 2015 reporting period, the Ombudsman was 

staffed with approximately 25 full-time employees with 

diverse backgrounds and areas of subject matter expertise 

in immigration law and policy, most of whom work on this 

vital function. These individuals include former employees 

from USCIS, DOS, and DOL; attorneys who previously 

worked for non-profit organizations; and private sector 

business and family immigration experts. The Ombudsman 

team provides case assistance daily to the thousands of 

people who seek assistance. 

In the 2015 reporting period (April 1, 2014 to March 31, 

2015), the Ombudsman received 7,555 case assistance 

requests, an increase of over 23 percent from the 2014 

reporting period’s total. See Figure 1.1, Requests for Case 

Assistance Received by Reporting Period (2011 to 2015). 

The Ombudsman seeks to review all incoming requests for 

case assistance within 30 days and to take action to resolve 

90 percent within 90 days of receipt.5

5 Ombudsman’s Webpage, “Submitting a Request for Case Assistance” (Mar. 

25, 2014); http://www.dhs.gov/case-assistance (accessed May 7, 2015); see

DHS Quarterly Performance Report: Management Measures, FY 2014 End of 

Year (Dec. 5, 2014).

The 2015 increase in requests for case assistance is due in 

large part to individuals who are experiencing difficulties 

with DACA renewal applications. A detailed review of 

DACA issues can be found in the section titled Renewals 

for Deferred Action for Childhood Arrivals of this Annual 

Report. See Figure 1.2, Top Five Primary Form Types 

Associated with Requests for Case Assistance.

The Ombudsman’s Jurisdiction. The Ombudsman’s 

jurisdiction is limited by statute to matters involving 

USCIS.6

 Individuals, employers, and their legal 

representatives may contact the Ombudsman after 

encountering problems with USCIS. When a request 

for case assistance falls outside of the Ombudsman’s 

jurisdiction, the individual or employer is referred to the 

pertinent government agency. 

6 HSA § 452(b)(1). Jurisdiction may extend to issues involving both USCIS and 

another government entity. The Ombudsman does not provide legal advice.

Request for Case Assistance. The Ombudsman encourages 

individuals and employers to submit requests for case 

assistance through the Ombudsman’s Online Case 

Assistance, but they can also file via mail, email and 

facsimile. Approximately 96 percent of case assistance 

requests during the reporting period were received by the 

Ombudsman through the online system. See Figure 1.3, 

Top 10 Customers’ States for Case Assistance Received this 

Reporting Period.

3
4 | 

1.2 Top Five Primary Form Types Associated with 

Requests for Case Assistance

FORM NAME NUMBER

PERCENTAGE 

OF TOTAL 

RECEIPTS

I-821D, Consideration of Deferred 

Action for Childhood Arrivals 1,556 20.6%

I-765, Application for Employment 

Authorization 878 11.6%

I-130, Petition for Alien Relative 656 8.7%

I-485, Application to Register Permanent Residence or Adjust Status

(Based on an underlying humanitarian application/petition)*

641 8.5%

I-485, Application to Register 

Permanent Residence or Adjust  

Status (Based on an underlying employment-based immigrant petition)

446 5.9%

*Underlying humanitarian petitions or applications include those for Special Immigrant 

 Juveniles, refugees, and asylees.

An Office of Last Resort. Absent an urgent matter, the 

Ombudsman requires that individuals and employers first 

avail themselves of the USCIS customer service options 

and wait 60 days past USCIS posted processing times 

before contacting the Ombudsman for assistance.7

 USCIS 

customer service options include: My Case Status,8

 NCSC,9

InfoPass,10 and the e-Service Request tool.11 Individuals and 

employers are asked to indicate prior attempted remedial 

actions when submitting case assistance requests to the 

Ombudsman. In 69 percent of requests for case assistance 

submitted to the Ombudsman during the reporting period, 

individuals and employers first contacted the NCSC, while 

27 percent appeared at InfoPass appointments at a USCIS 

local field office. 

7 There are two exceptions to the Ombudsman’s requirement that applicants 

wait 60 days past USCIS processing times: requests for case assistance related 

to applications for employment authorization, which are to be adjudicated in 

90 days pursuant to the regulations, may be submitted at day 75; and DACA 

renewal applications, for which the posted processing time is currently 120 

days, may be submitted at day 105. 8 See USCIS Webpage, “myUSCIS—Case Status;” 

https://egov.uscis.gov/casestatus/landing.do (accessed May 7, 2015). 9 The NCSC can be reached at 1-800-375-5283. 10 InfoPass is a free service that allows individuals to schedule an in-person 

appointment with a USCIS Immigration Officer through the USCIS Webpage 

at http://infopass.uscis.gov/ (accessed May 7, 2015). 11 USCIS e-Request, https://egov.uscis.gov/e-Request/Intro.do (accessed May 

7, 2015).

1.3 Top 10 Customers’ States for Case Assistance 

Received this Reporting Period

CUSTOMERS’ STATES NUMBER PERCENTAGE OF 

TOTAL RECEIPTS

California 1,084 14.4%

Texas 951 12.6%

New York 832 11.0%

Illinois 755 10.0%

Florida 464 6.1%

Virginia 318 4.2%

New Jersey 289 3.8%

Maryland 225 3.0%

Georgia 224 3.0%

Washington 194 2.6%

Expediting Inquiries to USCIS. The Ombudsman will 

expedite a request based on an emergency or hardship.12 In 

deciding whether to expedite, the Ombudsman adheres to 

criteria used by USCIS.13

12 Individuals or employers requesting expedited handling are instructed to 

clearly state so in Section 10 (“Description”) of Form DHS-7001, briefly 

describe the nature of the emergency or other basis for the expedite request, 

and provide relevant documentation to support the expedite request. All 

expedite requests are reviewed on a case-by-case basis. 13 U.S. Department of Justice Memorandum, “Service Center Guidance for 

Expedite Requests on Petitions and Applications” (Nov. 30, 2001). The 

criteria are: Severe financial loss to company or individual; extreme emergent 

situation; humanitarian situation; nonprofit status of requesting organization 

in furtherance of the cultural and social interests of the United States; 

Department of Defense or National Interest Situation; USCIS error; and 

compelling interest of USCIS. See also USCIS Webpage, “Expedite Criteria” 

(Jun. 7, 2011); http://www.uscis.gov/forms/expedite-criteria (accessed May 7, 

2015).

Ombudsman Inquiries Resolved Though Direct Contact 

with USCIS Offices. To effectively and efficiently carry 

out its mission, the Ombudsman works directly with 

USCIS field offices, service centers, and other offices 

where adjudications are performed to resolve case issues. 

Collaboration and open dialogue are key tools in resolving 

problems with pending applications or petitions that 

have been brought to the Ombudsman’s attention. When 

the Ombudsman is not able to resolve a request for case 

assistance, the request is escalated to the office director 

at first, and, if necessary, to USCIS Headquarters. The 

Ombudsman evaluates each request for case assistance 

by examining facts, reviewing relevant USCIS systems, 

and analyzing applicable laws, regulations, policies 

and procedures. After assessing each request for case 

assistance, the Ombudsman may contact USCIS service 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

centers, field offices, or other facilities to request they 

engage in remedial actions.14 See Figure 1.4, Top 10 

USCIS Offices Contacted in 2015 Reporting Period. 

14 If a request for case assistance has been determined to be within USCIS 

posted processing time or USCIS has recently taken action on the application 

or petition, the Ombudsman will note that “no difficulty has been found” and 

will close the matter without contacting USCIS. See Ombudsman Webpage, 

“Submitting a Request for Case Assistance” (Mar. 25, 2014);

http://www.dhs.gov/case-assistance (accessed May 7, 2015).

USCIS Responses. Pursuant to a Memorandum 

of Understanding (MOU) between USCIS and the 

Ombudsman, USCIS has 30 business days to respond to the 

Ombudsman’s case inquiries regarding the action taken on 

a specific application or petition, and 7 business days to 

respond to expedited inquiries.15 See Figure 1.5, Average 

Number of Days for a USCIS Response.16

15 USCIS Webpage, “Memorandum of Understanding Between U.S. Citizenship 

and Immigration Services and the Citizenship and Immigration Services 

Ombudsman” (Feb. 23, 2012); http://www.uscis.gov/sites/default/files/USCIS/

About%20Us/Electronic%20Reading%20Room/signedmou2-23-12.pdf

(accessed May 7, 2015). 16 This data reflects the average number of days awaiting USCIS response, and 

data does not include case assistance requests that have been placed under 

extended review queue or have been resolved.

Ombudsman case assistance, of course, does not always 

result in a case approval. Based on the Ombudsman’s 

intervention, USCIS sometimes takes action on a long 

pending case and issues a Request for Evidence, a Notice 

of Intent to Deny, or a denial. Often cases that have fallen 

outside of normal processing times have done so for 

reasons beyond the control of USCIS, such as a pending 

background check being conducted by another agency. 

Some adjudication issues are a matter of discretion, and 

the USCIS decision is not changed after an Ombudsman 

inquiry. It is important to note that the Ombudsman’s case 

assistance is never a substitute for legal recourse; for many 

immigration benefits, individuals and employers must file 

a Motion to Reopen/Reconsider and/or appeal to preserve 

their rights.17

17 See generally 8 C.F.R. §§ 103.3(a) (appeals), 103.5 (Motions to Reopen/

Reconsider).

In cases taken on by the Ombudsman that are delayed 6 

months past USCIS posted processing times with no action 

by the agency, the Ombudsman places the application or 

petition in a long pending case queue. The Ombudsman 

regularly follows up with USCIS on these cases. These 

requests for case assistance are closed when USCIS takes 

action on the application or petition.

The Ombudsman’s Case Assistance 

The Ombudsman works to resolve a wide range of requests 

for assistance across employment, family, and humanitarian 

1.4 Top 10 USCIS Offices Contacted in 2015 

Reporting Period

USCIS OFFICE NUMBER OF 

INQUIRIES

Nebraska Service Center (NSC) 1,759

Texas Service Center (SSC) 1,474

Vermont Service Center (ESC) 886

National Benefits Center (NBC) 509

California Service Center (WSC) 341

Investor Program Office (IPO) 174

Chicago Field Office (CHI) 156

New York City Field Office (NYC) 102

Atlanta Field Office (ATL) 71

Washington Field Office (WAS) 63

1.5 Average Number of Days for a USCIS Response

USCIS OFFICE

AVERAGE NUMBER 

OF DAYS FOR A USCIS 

RESPONSE

USCIS Offices with the Shortest Response Time

San Fernando Valley Field Office (SFV) 1

Newark Field Office (NEW) 5

Denver Field Office (DEN) 6

Memphis Field Office (MEM) 8

Queens Field Office (QNS) 9

USCIS Offices with the Longest Response Time

Refugee Affairs Division (RAD) 246

Miami Field Office (MIA) 178

Los Angeles Asylum Office (ZLA) 158

Arlington Asylum Office (ZAR) 143

Newark Asylum Office (ZNK) 143

Average Number of Days Awaiting 

USCIS Response by Service Center

California Service Center (WSC) 74

Nebraska Service Center (NSC) 57

Texas Service Center (SSC) 46

National Benefits Center (NBC) 42

Vermont Service Center (ESC) 30

5

 
6 | 

categories, and ranging from cases that are outside posted 

processing times to more complex issues involving 

administrative, adjudicative, or multi-agency issues. The 

following cases are illustrative of assistance provided by 

the Ombudsman in the 2015 reporting period.

Expediting Cases

M Preventing Children from “Aging Out” of Eligibility. 

USCIS approved Form I-130, Immigrant Petition for 

Alien Relative, but the petitioner did not receive the 

approval notice and was concerned that his child, the 

beneficiary, would age out—no longer be eligible to 

immigrate as a child—by turning 21-years old the 

following day. The Ombudsman contacted USCIS, and 

the agency forwarded an electronic copy of the approval 

notice to the Ombudsman and mailed the hard copy 

notice to the petitioner the same day, and the child could 

immediately file his Form I-485, Application to Register 

Permanent Residence or Adjust Status.

Reopening Improper Denials

M Provisional Waivers. A provisional waiver applicant 

who was denied for lack of extreme hardship sought 

assistance from the Ombudsman. The Ombudsman 

contacted USCIS because the Request for Evidence 

was vague and did not provide the applicant with the 

opportunity to address concerns identified by USCIS 

during the initial review of the waiver application. The 

Ombudsman also noted that it appeared USCIS did not 

consider substantial evidence of financial hardship and 

made errors in factual summaries. In response to the 

Ombudsman’s inquiry, USCIS reopened and approved 

the waiver.

M Legal Interpretations. Stakeholders brought to 

the Ombudsman’s attention cases in which Lawful 

Permanent Residents were denied naturalization on the 

basis that an Immigration Judge’s orders of adjustment 

to permanent residence were erroneous. The applicants 

with the assistance of a community-based organization 

had made repeated efforts to explain and correct 

USCIS’ interpretation regarding the judge’s order. The 

Ombudsman contacted USCIS field office leaders, who 

stated that they were bound by the decision of local 

counsel that compelled them to deny these cases. The 

Ombudsman contacted USCIS Region and Headquarters 

leaders to seek further review of the interpretation. USCIS 

later informed the Ombudsman that the denials were 

issued in error, and the naturalization applications for these 

individuals were reopened. 

Administrative and Procedural Issues 

M Mailing Issues. An applicant with an approved Form 

N-565, Application for Replacement Naturalization/

Citizenship Document contacted the NCSC because the 

applicant never received the naturalization certificate. In 

response to the call, the applicant received two letters 

from USCIS that were issued on the same day; but 

the letters contradicted each other. One letter stated a 

certificate was never produced and mailed, while the 

other letter stated that a certificate was mailed. The 

applicant called the NCSC for clarification and was 

told to wait 30 days to receive the certificate. After 30 

days, the applicant once again called the NCSC and 

was informed that the only solution was to file a second 

N-565 application with filing fee. The applicant followed 

the NCSC’s instruction and filed a second application. 

When the second application was pending outside the 

posted processing times, the applicant contacted the 

Ombudsman for assistance. Following receipt of the 

Ombudsman’s inquiry, USCIS found that there was an 

error in issuing the certificate for the first application. 

USCIS immediately resolved the issue and mailed the 

certificate to the applicant; however, USPS returned the 

certificate to USCIS as undeliverable. The Ombudsman 

confirmed the mailing address with USCIS and requested 

the certificate be re-mailed. Since the second application 

should not have been required, the Ombudsman also 

requested a fee refund. At the time of finalizing this 

Report, the fee refund request remained pending.

M Change of Address. The Ombudsman contacted USCIS 

regarding non-delivery of an EAD. USPS returned the 

EAD, and USCIS did not appear to follow its standard 

operating procedure to search for an updated address. 

The Ombudsman contacted USCIS and was informed 

the following day that the EAD would be mailed to the 

new address, and USCIS also provided the applicant the 

parcel tracking number.

M Timely Receipt of Appeals. USCIS denied a Form 

I-290B, Notice of Appeal or Motion on the ground that 

it was not timely filed. The petitioner sought assistance 

from the Ombudsman, stating that the Form I-290B was 

timely filed within 33 days of the denial notice. Since 

the 33rd day fell on a weekend, the filing should have 

been considered as timely received the next business 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 7

day, in accordance with the regulations.18 Following 

receipt of the Ombudsman’s inquiry, USCIS reviewed 

the documentation, accepted the motion, and reopened 

the case.

18 8 C.F.R. §§ 103.5, 103.8. Additionally, in accordance with 8 C.F.R. § 1.1(h), 

the term “day” when computing the period of time for taking any action 

provided in this chapter including the taking of an appeal, shall include 

Saturdays, Sundays, and legal holidays, except that when the last day of the 

period so computed falls on a Saturday, Sunday or a legal holiday, the period 

shall run until the end of the next day which is not a Saturday, Sunday, nor a 

legal holiday.

USCIS’ Role in Resolving Cases

USCIS’ cooperation is critical to the Ombudsman’s 

mission to resolve problems that individuals and employers 

experience when seeking immigration benefits. USCIS 

field offices, service centers, asylum offices, lockbox 

receipting facilities, and other offices work directly with 

the Ombudsman to address individual cases. To do so, 

USCIS officers must locate and retrieve files, re-examine 

supporting documentation, and sometimes consult with 

agency counsel to determine if a case was properly 

decided. Often cases present complex procedural issues 

that necessitate in-depth analysis or novel questions of law 

and policy that require USCIS Headquarters review. On 

behalf of all the immigrants served, the Ombudsman thanks 

the dedicated USCIS officers who assist in resolving case 

problems every day.

The Year in Outreach

The Ombudsman meets frequently with a wide range 

of stakeholders across the United States, including 

state and local officials, Congressional offices, national 

and community-based organizations, and employer 

associations.19 Public engagement provides the 

Ombudsman the opportunity to learn about various 

immigration issues in different regions of the country. 

Outreach is essential to the Ombudsman’s mission and 

critical to fostering accountability and transparency in 

the delivery of immigration services. In this reporting 

19 The Ombudsman led or participated in stakeholder engagements in the 

following locations: Northeast: Newtown and Philadelphia, PA; New York, 

NY; and Boston, MA. Midwest: Indianapolis, IN; and Chicago, IL. MidAtlantic: Alexandria, Arlington, Roanoke, and Herndon, VA; Baltimore, 

MD; Washington, DC; and Charles Town, WV. Southeast: Charleston and 

Greenville, SC; Atlanta, GA; Memphis, TN; Greensboro, Raleigh, and 

Charlotte, NC; New Orleans, LA; and Orlando, FL. Southwest: El Paso, 

TX; Artesia, NM; and Phoenix, AZ. West: Las Vegas, NV; San Diego and 

Newport Beach, CA; Seattle, WA; and Portland, OR. Central America: 

Mexico City, Mexico.

period, the Ombudsman conducted over 84 stakeholder 

engagements, reaching thousands of stakeholders.20

20 The Ombudsman has established a performance measure to conduct 100 

outreach activities each fiscal year. See DHS Quarterly Performance Report 

page 48: Management Measures, FY 2014 End of Year (Dec. 5, 2014).

Teleconferences

To inform stakeholders of new initiatives and receive 

feedback on a variety of topics, the Ombudsman hosted the 

following teleconferences in the 2015 reporting period: 

M Provisional Waivers (March 31, 2015)

M Employment-Based Programs (February 19, 2015)

M Deferred Action for Childhood Arrivals (DACA) 

Renewals (January 27, 2015) 

M Fourth Annual Conference Recap (December 3, 2014) 

M USCIS and Student Visa Issues (September 25, 2014) 

M Annual Report to Congress (July 30, 2014) 

The Ombudsman’s Annual Conference

On November 6, 2014, the Ombudsman held its Fourth 

Annual Conference: Government and Stakeholders Working 

Together to Improve Immigration Services.21 Conference 

participants included individuals from non-governmental 

organizations, the private sector, and federal and state 

agencies. The Ombudsman was honored to have Secretary of 

Homeland Security Jeh Johnson as the keynote speaker. The 

morning session also featured an “armchair discussion” with 

USCIS Director León Rodriguez and remarks from Internal 

Revenue Service Taxpayer Advocate Nina Olsen. The 

afternoon panels focused on a variety of immigration issues:

21 See DHS Blog, http://www.dhs.gov/blog/2014/11/10/ombudsmans-fourthannual-conference-government-and-stakeholders-working-together 

(Nov. 10, 2014). 

M Interagency Management of the Visa Queues: The Visa 

Bulletin, Cut-Off Dates, and Employment and FamilyBased Strategies

M Employment Hot Topics (H-2 Adjudications)

M Advanced Topics in U Visa and U Adjustment

M Immigration Benefits Programs for Children: Special 

Immigrant Juveniles (SIJ) and Unaccompanied Alien 

Children (UAC) Asylum
8 | ANNUAL REPORT TO CONGRESS JUNE 2015

M Change of Address and Mailing Issues: Delivery of 

USCIS Correspondence and Documents

M A Close Look at I-140 Adjudications

Ombudsman Local Representatives

Section 452(g) of the Homeland Security Act contemplates 

“local ombudsmen” to represent the office at the state and 

local level. In addition to an office in Washington, DC, the 

Ombudsman now currently has remote employees in North 

Carolina and Indiana who conduct regional outreach in the 

Southeast and Midwest to identify and resolve problems 

with local USCIS offices. The Ombudsman is evaluating 

the impacts and benefits of local engagement.

During this reporting period, remote employees visited 

eight USCIS offices in the Southeast and Midwest, attended 

12 in-person engagements, and conducted in-person 

trainings for USCIS officials in the Charlotte and Raleigh 

USCIS Field Offices.

Interagency Engagement

The Ombudsman continues to promote interagency 

 liaison through:

M Monthly meetings with DOS and USCIS on the 

management of the visa queues aimed at ensuring visas 

for which there is demand are fully allocated, and the 

transparent, orderly, and predictable movement of Visa 

Bulletin cut-off dates;

M Quarterly data quality working group meetings with 

USCIS, CBP, ICE, and the DHS Office of the Chief 

Information Officer to facilitate problem-solving related to 

the SAVE program, which utilizes DHS systems used to 

verify immigration status and benefits eligibility;

M A working group with the DOL, DOS, and USCIS 

representatives focused on H-2 Temporary Worker 

processing issues;

M Participation in the Department’s assessment group 

tasked with the annual DHS Strategic Review of 

Goal 3.1: Strengthen and Effectively Administer the 

Immigration System;22

22 Effective FY 2014, every executive agency must conduct an annual Strategic 

Review on the agency’s progress in achieving its strategic goals. OMB Circular 

A-11, Part 6; http://www.performance.gov/content/goal-31-strengthen-andeffectively-administer-immigration-system#overview (accessed Apr. 20, 2015).

M Participation in the Interagency Working Group on 

Separated and Unaccompanied Children with other 

DHS components, Department of Justice (DOJ), DOS, 

the Department of Health and Human Services, the 

White House, representatives of foreign governments, 

and other non-governmental and quasi-governmental 

representatives such as Office of the United Nations 

High Commissioner for Refugees. The working group 

discusses topics relating to unaccompanied and separated 

alien children, including trends within this population, 

care and custody issues, and family reunification; and

M Participation in the DHS Language Access Working 

Group to address the language needs of persons with 

limited English proficiency and improve language services 

for diverse communities across the country, demonstrating 

the Ombudsman’s commitment to providing meaningful 

access to DHS programs and activities. 

The Ombudsman’s Language Access Plan

Over the past year, the Ombudsman has been developing 

a Language Access Plan to provide greater access for 

individuals with limited English proficiency to Ombudsman 

services. The Ombudsman translates key materials into the 

most frequently encountered languages, and is reviewing 

the best methods to provide interpretive services.23

23 DHS Language Access Plan (Feb. 28, 2012); 

http://www.dhs.gov/xlibrary/assets/crcl/crcl-dhs-language-access-plan.pdf

(accessed Apr. 3, 2015).

The Ombudsman’s Annual Report

The Ombudsman submits an Annual Report to Congress by 

June 30 of each calendar year in accordance with section 

452(c) of the Homeland Security Act. The Ombudsman 

received USCIS’ response to the 2014 Annual Report on 

June 9, 2015. The Ombudsman is currently evaluating 

USCIS’ response, which was delivered as this Report was 

going to press.

DHS Blue Campaign

DHS combats human trafficking, and humanitarian 

immigration programs provide relief for foreign national 

victims. As Chair of the Blue Campaign, the Departmentwide effort dedicated to fighting human trafficking, and 

Acting Co-Chair of the DHS Council on Combating 

Violence Against Women, Ombudsman Odom is at the 

forefront of these efforts. These two initiatives, in tandem 

with USCIS and a host of other Federal, state, and local 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

entities, have elevated awareness of successful antitrafficking strategies while enhancing humanitarian relief 

programs for thousands of trafficking and abuse victims 

each year.24

24 See infra section “Processing of Benefits for Victims of Domestic Violence, 

Trafficking, and Other Violent Crimes” of this Report.

Background

Under U.S. law, human trafficking consists of the 

recruitment, harboring, and/or transportation of a person 

or persons, through the use of force, fraud or coercion, for 

labor or services, such as involuntary servitude, peonage, 

debt bondage, or slavery.25 Sex trafficking—a form of 

human trafficking—is a commercial sex act induced by 

force, fraud, or coercion, or in which the person performing 

a commercial sex act has not attained 18 years of age.26

25 Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4; 

see also Violence Against Women and Department of Justice Reauthorization 

Act of 2005, Pub. L. No. 109-162 (2006); Victims of Trafficking and Violence 

Protection Act of 2000, Pub. L. No. 106-386; Violence Against Women Act of 

2000, Pub. L. No. 106-386; Violent Crime Control and Law Enforcement Act 

of 1994, Pub. L. No. 103-322. 26 Id.

DHS helps prevent trafficking through public outreach 

and education; protects trafficking victims through a 

coordinated, victim-centered approach; and aids the 

prosecution of traffickers through law enforcement 

investigations. Central to DHS’s protection of trafficking 

and abuse victims is the Department’s continued 

implementation of VAWA.27 Under VAWA, DHS extends 

three key forms of relief to these victims: (1) a process 

through which domestic violence sufferers can obtain 

independence from abusive partners by self-petitioning 

for lawful permanent residence; (2) T visas for human 

trafficking victims; and (3) U visas granted to victims of 

certain crimes who aid law enforcement officials in the 

investigation and/or prosecution of those crimes.28 Through 

these three programs, DHS and USCIS bring relief to more 

than 10,000 trafficking and abuse victims annually.29

27 Id. 28 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322; Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 

106-386; Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. 

No. 108-193. 29 See, e.g., USCIS Webpage, “USCIS Approves 10,000 U Visas for 6th Straight 

Fiscal Year” (Dec. 11, 2014); http://www.uscis.gov/news/uscis-approves10000-u-visas-6th-straight-fiscal-year (accessed Mar. 18, 2015).

DHS Blue Campaign Engagements. Since its formal 

charter in 2013, the Blue Campaign has served as the 

Department’s unified effort to combat human trafficking.

DHS’s specific activities include:

M Prevention: DHS aims to prevent human trafficking 

before it happens by educating the public to recognize 

and report suspected human trafficking to law 

enforcement. The Blue Campaign’s national public 

awareness campaign includes broad dissemination 

of print materials and public service announcements 

(PSAs) to bring visibility to a crime that is often hidden 

from view. The “Out of the Shadows” television PSA 

has aired more than 32,000 times in 40 states, with total 

donated airtime value of over $7.7 million.30 DHS also 

takes its message of awareness and prevention abroad, 

partnering with the DOS to train U.S. Embassy staff, 

consular officers, and employees in recognizing and 

reporting suspected human trafficking.

M Protection: DHS provides immigration relief to foreign 

victims of human trafficking in the form of Continued 

Presence, a temporary immigration status, T visas, and U 

visas. Through ICE Homeland Security Investigations 

(HSI), the Department employs victim assistance 

specialists who work with law enforcement and nongovernmental service providers to inform potential 

victims of their rights and how to receive help.

M Prosecution: DHS trains Federal, state, tribal, and 

local law enforcement officials to recognize indicators 

of human trafficking and to conduct successful human 

trafficking investigations. In FY 2014, DHS, through 

ICE HSI, opened more than 987 cases—many with 

help from tips from the public—that resulted in 828 

convictions in Federal cases with a nexus to trafficking 

30 DHS Webpage, “Out of the Shadows PSA” (Jan. 12, 2015); 

www.dhs.gov/video/out-shadows-psa (accessed Apr. 21, 2015).

9
10 | ANNUAL REPORT TO CONGRESS JUNE 2015

and the identification of more than 446 trafficking 

victims. DHS also coordinates and conducts human 

trafficking instruction overseas to deliver training at the 

DOS-International Law Enforcement Academies. 

M Training: DHS, with support from its Federal Law 

Enforcement Training Center (FLETC), is a national 

leader in human trafficking training development and 

delivery, providing instruction to law enforcement, first 

responders, prosecutors, government, and faith-based and 

private organizations. Since 2010, DHS Components 

and the Blue Campaign have trained well over 150,000 

individuals on indicators of human trafficking through 

a combination of live and web-based trainings. This 

year, the Blue Campaign developed nine training videos, 

addressing sex trafficking in high schools, domestic 

servitude, and labor trafficking in a variety of locales. 

Many of these training videos have already been 

presented to live audiences, and all non-law enforcement 

sensitive videos will be posted online in this fiscal year. 

In conjunction with FLETC, the Blue Campaign has also 

released a web-based course for law enforcement focused 

on labor trafficking and commercial sex trafficking. A 

companion web-based course for general audiences is in 

development and is scheduled for dissemination in the 

coming fiscal year. 

The Blue Campaign offers a variety of free, public 

resources through its website, www.dhs.gov/bluecampaign, 

that help raise awareness about combating human 

trafficking. Blue Campaign posters showcase examples 

of the three forms of human trafficking: forced labor, 

domestic servitude, and commercial sex trafficking. These 

posters have been displayed at truck stops and major 

airports across the country. Additional resources include 

indicator cards for law enforcement, first responders, or 

others likely to encounter victims; pamphlets on human 

trafficking, DHS services, and DHS programs; and cards 

listing contact information for the National Human 

Trafficking Resource Center for distribution to potential 

victims and vulnerable populations. 

One of the key successes of the Blue Campaign has been 

the ability to create a vast network of partner organizations 

to join in DHS’s efforts to combat human trafficking. 

Within the past year, the Blue Campaign has entered into 

formal partnerships with the City of Phoenix, the State 

of Arizona, the State of Mississippi, the National League 

of Cities, and TravelCenters of America, a company that 

operates highway gas stations, quick-service restaurants, 

and convenience stores in 43 states. Through these 

partnerships, DHS provides web-based training resources 

to personnel and co-branded public awareness materials to 

educate the public on recognizing and reporting suspected 

human trafficking activity.

The Ombudsman also provides case assistance to 

individuals seeking to resolve problems with applications 

and petitions for immigration relief, including immigrant 

victims of trafficking. In addition, the Ombudsman 

conducts regular stakeholder engagements with service 

providers to understand and address systemic concerns with 

the immigration benefits process for victims of trafficking 

and other crimes.

In the coming months, the Blue Campaign will enhance 

its national awareness campaign by focusing on industries 

where trafficking is especially prevalent. The Blue 

Campaign will increase external engagement through 

stakeholder events, formalized partnerships, and targeted 

outreach to sectors uniquely positioned to recognize 

suspected human trafficking and do something about it. 

In support of this approach, training objectives for the 

2015 fiscal year include development of additional human 

trafficking indicator videos, development of a trainthe-trainer course for law enforcement to exponentially 

increase the pool of qualified human trafficking instructors 

nationwide, and leveraging formal and informal 

partnerships to broadly disseminate Blue Campaign 

training tools.

DHS Council on Combating Violence Against Women. 

The Council on Combating Violence Against Women arose 

out of DHS’s ongoing commitment to prevent and address 

gender-based violence. In 2010, the Department established 

a working group dedicated to championing the mission of 

the White House Council on Women and Girls.31 In March 

2013, DHS formally launched the Council on Combating 

Violence Against Women and named Ombudsman Odom as 

the Council’s Acting Co-Chair in September of that year.32

31 See White House Council on Women and Girls Webpage, “Council on Women 

and Girls;” https://www.whitehouse.gov/administration/eop/cwg (accessed 

May 19, 2015). 32 See Ombudsman’s Annual Report 2014, p. 34.

Ombudsman Odom and Council Co-Chair, Assistant 

Secretary for Legislative Affairs Brian de Vallance, have 

facilitated key stakeholder engagements, including public 

webinars offered each quarter that bring together law 

enforcement personnel, healthcare providers, and victim 

advocates. These webinars highlight measures that 

DHS can undertake to better serve and protect victims 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

of violence. In summer 2014, the Council co-hosted a 

teleconference with USCIS for domestic violence service 

providers focused on U and T visas. In January 2015, the 

Council co-hosted a Human Trafficking 101 teleconference 

with the Blue Campaign in recognition of Human 

Trafficking Awareness month. During this teleconference, 

representatives from the Ombudsman’s Office, USCIS, 

FLETC, and ICE HSI shared information about the 

indicators of human trafficking, the investigation and 

prosecution of trafficking crimes, protections for immigrant 

victims including the U and T visas, and support services 

for trafficking victims. In April 2015, the Council hosted 

a teleconference on DHS implementation of the Prison 

Rape Elimination Act (PREA) in recognition of National 

Sexual Assault Awareness and Prevention Month.33 DHS 

issued final regulations related to PREA in 2014 to prevent, 

detect, and respond to sexual abuse and assault in DHS 

confinement facilities.34

33 See Proclamation No. 9249, 80 Fed. Reg. 18513 (Apr. 1, 2015). 34 DHS Press Release, “DHS Announces Finalization of PREA Regulations” 

(Feb. 28, 2014); http://www.dhs.gov/news/2014/02/28/dhs-announcesfinalization-prison-rape-elimination-act-standards (accessed Apr. 28, 2015). 

The Council has also supported the DHS Office for Civil 

Rights and Civil Liberties’ efforts to coordinate consistent 

VAWA confidentiality policies for the Department. In 

November 2013, DHS issued two directives (DHS 

Directive Number 002-02, Implementation of Section 

1367 Information Provisions and DHS Directive 

Number 215-01, Disclosure of Section 1367 Information 

to National Security Officials for National Security 

Purposes) establishing a single DHS policy regarding the 

implementation of the VAWA confidentiality provisions.35 

The two directives are complementary—DHS Directive 

Number 002-02 governs general policy for sharing 

information and DHS Directive Number 215-01 pertains 

to sharing for national security purposes. The directives 

apply throughout DHS, particularly to those employees 

who work with applicants for victim-based immigration 

relief or who have access to protected information, such 

as USCIS, ICE, the Office of Operations Coordination and 

Planning, the Office of Intelligence and Analysis, and CBP. 

The directives also serve as the principal reference for 

disclosing any information related to individuals seeking T 

visas, U visas, or VAWA protections for counterterrorism 

purposes to elements of the intelligence community, 

other Federal departments and agencies, and foreign 

government entities.

35 8 U.S.C. § 1367. Directing guidance as instructed by 8 U.S.C. § 1367(d), as 

amended by the Violence Against Women Reauthorization Act of 2013, Pub. 

L. No. 113-4, section 810.

Components with access to section 1367 information must 

create ways to identify protected individuals, develop 

safeguards to protect this information, and require all 

employees, who through the course of their work could 

come into contact with victim applicants or have access to 

information covered by section 1367, to complete VAWA: 

Confidentiality and Immigration Relief training.

11
Key Developments and Areas of Focus

Under Section 452(c)(1)(B) of the Homeland Security Act 

of 2002, the Ombudsman’s Annual Report must include 

a “summary of the most pervasive and serious problems 

encountered by individuals and employers” seeking benefits 

from USCIS and other information as the Ombudsman may 

deem advisable. This year’s Annual Report covers issues and 

developments in the following areas:

n Families and Children

n Employment

n Humanitarian

n Interagency, Customer Service, and Process Integrity

12 | ANNUAL REPORT TO CONGRESS JUNE 2015
Executive Immigration Reform

On November 20, 2014, President Obama announced 

a series of executive actions to “fix our nation’s broken 

immigration system.”36 Secretary of Homeland Security 

Jeh Johnson published at that same time multiple policy 

memoranda to implement the announced executive 

immigration reforms.37 USCIS, along with CBP and 

ICE, is responsible for carrying out most of these actions. 

As described in greater detail below, these include new 

USCIS initiatives, as well as new regulations and policies 

for enforcement families, and businesses hiring foreign 

workers. Planning and implementation of these initiatives, 

as well as ensuing litigation, dominated USCIS’ attention 

for much of the reporting period.

36 See White House Webpage, “Fixing the System: President Obama is Taking 

Action on Immigration;” http://www.whitehouse.gov/issues/immigration/

immigration-action (accessed Apr. 23, 2015). 37 See DHS Webpage, “Fixing Our Broken Immigration System Through 

Executive Action—Key Facts” (Jan. 5, 2015); 

http://www.dhs.gov/immigration-action (accessed Apr. 23, 2015).

Background

New Enforcement Priorities and the Priority Enforcement 

Program. On January 5, 2015, DHS implemented a new 

department-wide enforcement and removal policy.38 The 

new policy places top priority on national security threats, 

convicted felons, gang members, and illegal entrants 

apprehended at the border; second priority on those 

convicted of significant or multiple misdemeanors and those 

who are not apprehended at the border, but who entered 

or reentered this country unlawfully after January 1, 2014; 

and third priority on those who are non-criminals but who 

have failed to abide by a final order of removal issued on 

or after January 1, 2014. Under this revised policy, those 

who entered without inspection prior to January 1, 2014, 

who never disobeyed a prior order of removal, and were 

never convicted of a serious offense, will not be priorities 

for removal. 

38 See DHS Policy Memorandum, “Policies for the Apprehension, Detention and 

Removal of Undocumented Immigrants” (Nov. 20, 2014); 

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_

prosecutorial_discretion.pdf (accessed Feb. 23, 2015).

CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 13
14 | 

In June 2015, DHS is ending the Secure Communities 

program and is replacing it with the Priority Enforcement 

Program (PEP) that will reflect DHS’s new enforcement 

priorities.39 DHS also implemented a new Southern Border 

and Approaches Campaign Strategy to fundamentally alter 

the way resources are brought to bear at the border.40 The 

new strategy focuses on three areas to coordinate more 

effectively interdiction resources: the southern maritime 

border; the southern land border (including the West 

Coast); and the crossing of unaccompanied children.41

39 See DHS Policy Memorandum, “Secure Communities” (Nov. 20, 2014); 

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_

communities.pdf (accessed Feb. 23, 2015). 40 See DHS Policy Memorandum, “Southern Border and Approaches Campaign” 

(Nov. 20, 2014); http://www.dhs.gov/sites/default/files/publications/14_1120_

memo_southern_border_campaign_plan.pdf (accessed Feb. 23, 2015). 41 See DHS Webpage, Fixing Our Broken Immigration System Through 

Executive Action - Key Facts” (Jan. 5, 2015); 

http://www.dhs.gov/immigration-action (accessed Apr. 23, 2015).

New USCIS Programs, Policies, and Regulations. In 

February 2015, USCIS was to begin accepting applications 

for an expanded DACA program. In May 2015, the agency 

was scheduled to extend deferred action eligibility to 

certain individuals, on a case-by-case basis, who have 

children who are U.S. citizens or Lawful Permanent 

Residents through the Deferred Action for Parents of 

Americans and Lawful Permanent Residents (DAPA) 

program. On February 16, 2015, the U.S. District Court 

for the Southern District of Texas temporarily enjoined 

implementation of expanded DACA and DAPA.42 The 

DOJ appealed the temporary injunction; the Department 

and USCIS have ceased all activities related to expanded 

DACA and DAPA, and on May 26, 2015, the Fifth Circuit 

denied the emergency stay of the preliminary injunction.43

42 Texas v. United States, No. B-14-254 (S.D. Tex. Feb. 16, 2015). 43 Texas v. United States, No. 15-40238 (5th Cir. May 26, 2015).

The Court’s order does not affect the existing DACA 

program. At the time of this Report, individuals may 

continue to come forward and request an initial grant or 

renewal of DACA pursuant to the guidelines established in 

2012. The Court’s order does not affect the Department’s 

ability to set and implement enforcement priorities, as 

discussed above.

Similarly, other executive actions that USCIS is responsible 

for carrying out are unaffected by the District court’s 

injunction and will move forward. These initiatives include:

M Expansion of the Provisional Waiver Program. The 

Provisional Waiver program for undocumented spouses 

and children of U.S. citizens will be expanded to include 

the spouses and children of Lawful Permanent Residents, 

as well as the adult children of U.S. citizens and Lawful 

Permanent Residents. USCIS also will further clarify the 

“extreme hardship” standard that must be met to obtain 

the waiver.44

M Revised Parole Rules. DHS will begin rulemaking to 

identify the conditions under which entrepreneurs should 

be paroled into the United States, on the ground that their 

entry would yield a significant public economic benefit.45 

DHS will support the military and its recruitment efforts 

by working with the Department of Defense to address 

the availability of parole in place and deferred action to 

spouses, parents, and children of U.S. citizens or Lawful 

Permanent Residents who seek to enlist in the U.S. 

Armed Forces.46 DHS will also issue guidance to clarify 

that, in all cases when an individual physically leaves the 

United States pursuant to a grant of advance parole, that 

individual shall not have made a “departure” within the 

meaning of INA section 212(a)(9)(B)(i).47

M Support High-Skilled Business and Workers. DHS 

will take a number of administrative actions to better 

enable U.S. businesses to hire and retain highly 

skilled foreign-born workers and strengthen and 

expand opportunities for students to gain on-the-job 

training.48 On February 25, 2015, USCIS published 

a final rule extending eligibility for employment 

authorization to certain H-4 dependent spouses of H-1B 

nonimmigrants seeking employment-based Lawful 

Permanent Residence.49 The rule became effective on 

May 26, 2015. Eligible individuals include certain H-4 

dependent spouses of H-1B nonimmigrants who: (1) 

are the principal beneficiaries of an approved Form 

44 See DHS Policy Memorandum, “Expansion of the Provisional Waiver 

Program” (Nov. 20, 2014); http://www.dhs.gov/sites/default/files/

publications/14_1120_memo_i601a_waiver.pdf (accessed Feb. 23, 2015). See 

infra section “Provisional and Other Immigrant Waivers” of this Report.

ANNUAL REPORT TO CONGRESS JUNE 2015

45 See DHS Policy Memorandum, “Policies Supporting U.S. High-Skilled 

Businesses and Workers” (Nov. 20, 2014); http://www.dhs.gov/sites/

default/files/publications/14_1120_memo_business_actions.pdf (accessed 

Feb. 23, 2015). 46 See DHS Policy Memorandum, “Families of U.S. Armed Forces Members 

and Enlistees” (Nov. 20, 2014); http://www.dhs.gov/sites/default/files/

publications/14_1120_memo_parole_in_place.pdf (accessed Feb. 23, 2015). 47 See DHS Policy Memorandum, “Directive to Provide Consistency Regarding 

Advance Parole” (Nov. 20, 2015); http://www.dhs.gov/sites/default/files/

publications/14_1120_memo_arrabally.pdf (accessed Feb. 23, 2015). 

Undocumented individuals may trigger a 3-year or 10-year bar to returning 

to the United States when they depart. INA § 212(a)(9)(B)(i)(I-II). See infra

section “Military Immigration Issues” of this Report. 48 See DHS Policy Memorandum, “Policies Supporting U.S. High-Skilled 

Business and Workers” (Nov. 20, 2014); http://www.dhs.gov/sites/

default/files/publications/14_1120_memo_business_actions.pdf (accessed 

Feb. 23, 2015). 49 “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule,” 

80 Fed. Reg. 10283 (Feb. 25, 2015).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 15

I-140, Immigrant Petition for Alien Worker; or (2) have 

been granted H-1B status under sections 106(a) and 

(b) of the American Competitiveness in the Twentyfirst Century Act of 2000 (AC21), as amended by the 

21st Century Department of Justice Appropriations 

Authorization Act.50 Additionally, on March 24, 2015, 

USCIS published for public comment draft guidance 

on L-1B Specialized Knowledge, with a target effective 

date of August 31, 2015.51 Other initiatives related to 

employment-based programs, including guidance for 

foreign workers waiting in the visa queues seeking to 

take advantage of portability under AC21 were still in 

development at the time this Report was finalized.52

50 American Competitiveness in the Twenty-first Century Act of 2000 (AC21) 

§ 106(c)(1), Pub. L. No. 106-313. The Act permits H-1B nonimmigrants 

seeking Lawful Permanent Residence to work and remain in the United States 

beyond the 6-year limit on their H-1B status. 51 USCIS Policy Memorandum, “L-1B Adjudications Policy” (Mar. 24, 

2015); http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20

Memorandum%20for%20Comment/2015-0324-Draft-L-1B-Memo.pdf

(accessed Apr. 14, 2015). See infra section “Nonimmigrant Business Petitions 

Review” of this Report. 52 See AC21 § 106(c)(1), Pub. L. No. 106-313; INA § 204(j).

M Promote the Naturalization Process. To promote 

access to U.S. citizenship, USCIS will permit the use of 

credit cards as a payment option for the naturalization 

fee, and “expand citizenship public awareness.”53 

Currently, the naturalization fee of $680 is payable 

only by cash, check, or money order. DHS will also 

explore the feasibility of expanding fee waiver options. 

On April 14, 2015, Cecilia Muñoz, Assistant to the 

President and Director of the White House Domestic 

Policy Council, and USCIS Director León Rodriguez 

published The White House Task Force on New 

Americans’ strategic action plan.54 The plan outlines 

the Task Force’s immigrant integration strategy for the 

federal government, including goals and recommended 

actions to build welcoming communities; strengthen 

existing pathways to naturalization and promote 

civic engagement; support the skill development, 

entrepreneurship, and protect new American workers; 

expand opportunities for linguistic integration and 

education; and strengthen federal immigrant and refugee 

integration infrastructure.

53 See DHS Policy Memorandum, “Policies to Promote and Increase Access 

to U.S. Citizenship” (Nov. 20, 2014); http://www.dhs.gov/sites/default/files/

publications/14_1120_memo_naturalization.pdf (accessed Apr. 20, 2015). 54 The White House Task Force on New Americans, “Strengthening 

Communities by Welcoming All Residents: A Federal Strategic Action Plan 

on Immigrant & Refugee Integration” (Apr. 2015); https://www.whitehouse.

gov/sites/default/files/docs/final_tf_newamericans_report_4-14-15_clean.pdf

(accessed Apr. 20, 2015).
16 | ANNUAL REPORT TO CONGRESS JUNE 2015

Families and Children

Family re-unification is a foundation of U.S. immigration, 

and the Ombudsman reviews key family-based programs in 

this section. USCIS began accepting renewal applications 

under the DACA program in June 2014, continuing to provide 

discretionary relief to hundreds of thousands of young people. 

Approximately 15 percent of requests for case assistance 

submitted to the Ombudsman involve DACA renewal processing 

delays. Secretary of Homeland Security Jeh Johnson directed 

USCIS to expand the Provisional Waiver program and to clarify 

the “extreme hardship” factors. In December 2014, USCIS 

implemented the Haitian Family Reunification Parole Program. 

USCIS sub-offices at military installations continued to help 

military personnel through the naturalization application process 

while they simultaneously complete basic training.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 17

Renewals of Deferred Action 

for Childhood Arrivals 

Responsible USCIS Office: Service Center 

Operations Directorate

This reporting period marks the third year of the DACA 

program.55 DACA has allowed more than 664,300 young 

people who were brought to the United States as children 

to live, study, and work lawfully in this country.56 USCIS 

began accepting DACA renewal applications in June 

2014,57 and had received 374,311 applications as of March 

31, 2015.58 During the reporting period, the Ombudsman 

55 See Ombudsman’s Annual Report 2014, pp. 15-18. 56 Information provided by USCIS (Apr. 30, 2015). USCIS approved 664,373 

initial DACA applications between August 15, 2012 and March 31, 2015. 57 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed Apr. 29, 2015). The Frequently 

Asked Questions were last updated on June 15, 2015. 58 Information provided by USCIS (Apr. 30, 2015).

received 1,151 requests for case assistance from DACA 

renewal applicants who had lost or were on the verge of 

losing employment authorization. A sample of requests for 

case assistance submitted to the Ombudsman reflected that 

42 percent of those applicants filed for renewal within the 

150 to 120 day window before expiration, as recommended 

by USCIS, were not subject to RFEs, and still experienced 

processing delays. The Ombudsman urges USCIS to 

provide for automatic temporary extension of employment 

authorization upon timely receipt of the DACA renewal 

application, or take other measures to ensure that 

individuals previously granted DACA do not suffer the 

impact of a lapse in employment authorization or accrue 

unlawful presence.59

59 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed Apr. 29, 2015). (Question 52: 

“[I]f your previous period of DACA expires before you receive a renewal of 

deferred action under DACA, you will accrue unlawful presence for any time 

between the periods of deferred action unless you are under 18 years of age at 

the time you submit your renewal request.”) This FAQ was deleted as of June 

16, 2015.
18 | 

Background

Announced in June 2012 and implemented in August 

of that year, the DACA program provides relief from 

deportation and employment authorization for a period of 

2 years to individuals who entered the United States before 

reaching the age of 16 and who meet several additional 

requirements.60 As of March 31, 2015, USCIS received 

793,237 and approved 664,373 initial DACA applications.61 

Individuals who were granted DACA at the inception of the 

program became eligible to file for renewal of the deferred 

action period in June 2014.62

60 See DHS Press Release, “Secretary Napolitano Announces Deferred Action 

Process for Young People Who Are Low Enforcement Priorities” (Jun. 

15, 2012); https://www.dhs.gov/news/2012/06/15/secretary-napolitanoannounces-deferred-action-process-young-people-who-are-low (accessed Apr. 

30, 2015). 61 Information provided by USCIS (Apr. 30, 2015). 62 See DHS Press Release, “Secretary Johnson Announces Process for DACA 

Renewal” (Jun. 4, 2014); http://www.uscis.gov/news/secretary-johnsonannounces-process-daca-renewal (accessed May 20, 2015).

USCIS currently advises renewal applicants to file between 

150 to 120 days prior to the expiration of their employment 

authorization.63 Upon releasing the revised Form I-821D, 

Consideration of Deferred Action for Childhood Arrivals

on June 4, 2015, USCIS did not distinguish between 

initial and renewal applications in its suggested processing 

timeframes.64 USCIS subsequently reduced the published 

processing time for DACA renewals and began accepting 

case inquiries for applications pending 105 days or more.65 

Recent posted processing times for the Nebraska Service 

Center (NSC) and Texas Service Center (TSC)—the 

service centers that have been adjudicating DACA 

applications—reflect processing times of 3.5 months for 

renewal applications.66

63 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed Apr. 29, 2015). 64 DHS Press Release, “Secretary Johnson Announces Process for DACA 

Renewal” (Jun. 4, 2014); http://www.uscis.gov/news/secretary-johnsonannounces-process-daca-renewal (accessed May 20, 2015). 65 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed Apr. 29, 2015). 66 USCIS Webpage, “USCIS Processing Time Information for the Texas Service 

Center” (Apr. 13, 2015); https://egov.uscis.gov/cris/processTimesDisplayInit.

do (accessed Apr. 29, 2015); USCIS Webpage, “USCIS Processing Time 

Information for the Nebraska Service Center” (Apr. 13, 2015); https://egov.

uscis.gov/cris/processTimesDisplayInit.do (accessed Apr. 29, 2015).

To encourage timely filings and prevent lapses, on March 

27, 2015, USCIS began mailing renewal reminder notices 

to DACA recipients 180 days prior to the expiration 

date of their current period of DACA.67 Previously, 

USCIS mailed these reminder notices 100 days before 

the expiration date. Data provided by USCIS indicate 

that 81 percent of renewal filings are not being submitted 

timely. Stakeholders have expressed to the Ombudsman 

that renewal applicants miss the suggested filing window 

because of difficulties affording the $465 filing fee, among 

other factors. 

67 USCIS email to stakeholders, “USCIS Message: Deferred Action for 

Childhood Arrivals (DACA) Renewals” (Apr. 7, 2015). 

Request for case assistance from a DACA renewal 

applicant who ultimately was approved 133 days after 

her application was received: 

“I applied for my DACA renewal November 3, 2014 (120 

days before my permit expires) and I have not received 

anything informing me about what is going on. The 

last form I received from USCIS was the form giving my 

appointment date for my biometrics, which I completed 

on November 24, 2014. I’m 5 months pregnant, about 

to lose my job and health benefits, and I need something 

to show to my employer (temporary extension) so I don’t 

lose my job.” 

Ongoing Concerns

Requests for Case Assistance. USCIS has stated that it is 

timely adjudicating DACA renewal applications and issuing 

EADs in the vast majority of cases.68 USCIS data provided 

to the Ombudsman indicate that 92 percent of completed 

DACA renewals were adjudicated within the processing 

time goal.69

68 Information provided by USCIS (Apr. 30, 2015). 69 Id. 

Processing times published by USCIS, however, are not 

always reflective of processing times experienced by 

applicants. The Ombudsman received 1,151 requests for 

case assistance this reporting period involving processing 

times for DACA renewal adjudications—approximately 

15 percent of all case assistance requests handled by the 

Ombudsman for the reporting period. Requests for case 

assistance increased steadily through the reporting period, 

and 385 requests were received in March 2015 alone. An 

in-depth review of case assistance requests submitted to 

the Ombudsman between December 1, 2014 and January 

31, 2015, two of the heaviest months for such requests, 

showed the following:

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 19

M Of 215 requests, 77 percent (166 requests) involved the 

expiration of the deferred action period and employment 

authorization before a decision was issued. 

M Of the 166 requests with a lapse, over 30 percent were 

filed timely—at least 120 days before the expiration 

of the initial DACA period. Another 42 percent of 

these requests were not timely filed but the applications 

remained pending past the processing time goal of 120 

days before a decision was issued. 

Requests received by the Ombudsman in December 2014 

and January 2015 therefore reflected a high percentage of 

adjudications taking longer than 120 days, USCIS’ stated 

processing time goal; 72 percent of the requests for case 

assistance with a lapse involved adjudication periods 

exceeding 120 days, regardless of when they were filed. 

Further, an additional 20 percent of the cases without a 

lapse were adjudicated within 2 days of the expiration of 

the EAD, leading to card production after the expiration 

of employment authorization and a de facto lapse of 

employment authorization.70

70 EADs are required for those approved for deferred action. 8 C.F.R. §§ 

274a.12(c)(14), 274a.13(a)(1).

Such lapses carry severe consequences. Applicants whose 

DACA eligibility lapses accrue unlawful presence,71 are 

unable to renew their driver’s licenses, may lose eligibility 

for in-state tuition, and lose employment and related 

employer-provided health benefits. The Ombudsman has 

handled requests for case assistance made by individuals 

who have been terminated by their employers due to a lapse

of work authorization and are therefore unable to support 

themselves and their families. Delays through no fault of 

the applicant, resulting in expiration of DACA, contradict 

the spirit and purpose of the DACA program.

71 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed Apr. 29, 2015).

Individuals requesting case assistance have explained 

challenging personal circumstances:

“[It] is over 120 days and application still in initial review, 

my DACA/EAD expired already causing the termination 

from my job. I have 60 days to [recover] my job and not 

lose my health insurance and possible [sic] my house for 

being unable to pay the mortgage.”

In another request for case assistance, an applicant filed 

the DACA renewal application 142 days before the initial 

DACA expiration date, within USCIS’ filing window of 150 to 

120 days. Despite timely filing for renewal, USCIS neither 

adjudicated the case nor granted the applicant an interim 

extension. The applicant was unable to work upon the 

expiration of her employment authorization, which in turn 

impacted her ability to pay her college tuition as well as 

medical bills for chronic asthma. USCIS issued its decision 

70 days past the applicant’s expiration date—212 days 

after the filing date.
20 | 

“I am writing this E-mail [sic] today to ask for 

assistance in regards to my Deferred Action for 

Childhood Arrivals renewal process. 

I am 25 years old and I have been employed ... for 2 years. 

Today I am requesting assistance due to the fact that my 

work authorization (EAD) expired on [November 26, 2014] 

and I have not been unable [sic] to return to work because 

of this. I have been on unpaid administrative leave and I 

am going through an extremely difficult time with financial 

hardship and need to return to work to support my family 

as I have no income at this time and my fiancé will be 

expecting soon .... Please help me in expediting my case 

and request to have my case adjudicated, I just want to 

have my life back and continue to contribute to American 

society.” This applicant lost his job and was also evicted 

from his home while he waited for a USCIS decision on his 

DACA renewal; the renewal was pending for 199 days.

Temporary DACA Approvals. In addressing the possibility 

of a lapse in DACA benefits, USCIS guidance indicates that 

short-term DACA and employment authorization may be 

provided by the agency for applicants who filed for renewal 

at least 120 days before the expiration of the initial DACA 

period and the adjudication is delayed through no fault 

of the applicant.72 However, stakeholders have reported 

to the Ombudsman that USCIS has not issued short-term 

approvals for delayed adjudications involving timely filed 

cases, and USCIS has confirmed that it has not issued 

any temporary approvals.73 This guidance created much 

confusion in the stakeholder community. The following 

description of one applicant’s experience in requesting 

issuance of short-term approval illustrates this problem:

72 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed Apr. 29, 2015). (Question 

49: “[I]f you have filed your renewal request at least 120 days before your 

deferred action expires and USCIS is delayed in processing your renewal 

request, USCIS may provide you with DACA and employment authorization 

for up to an additional 120 days”). This FAQ was deleted as of June 16, 2015. 73 Information provided by USCIS (Nov. 17, 2014 and Apr. 30, 2015). 

Called USCIS ... 4 times between October 20, 

2014 and December 23, 2014. First time [USCIS] 

told me that they will put in an online application 

for interim employment authorization and that they 

will issue the document within 2 weeks. When 

called second time, officer said interim card takes 

4 weeks to process. Third time when I called on 

November 19, 2014, a Tier II said there was no 

way to expedite the process and that application 

is still undergoing normal processing. A Tier II 

officer told me that they no longer issue interim 

EAD. Fourth time I called on December 2, 

2014. [USCIS] said the normal processing time 

is 3 months, they are experiencing a backlog of 

applications. Suggested I go to field office.74

74 Information received through requests for case assistance.

In addition to highlighting the need for timely 

adjudications, the requests for case assistance also illustrate 

the need for an expedite process that takes humanitarian 

factors into account to prioritize certain cases. Unlike other 

types of applications, current USCIS policy does not allow 

expedited processing for DACA applications.75

75 USCIS Webpage, “Frequently Asked Questions” (Mar. 10, 2015); http://www.

uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (Apr. 29, 2015).

In January 2015, the Ombudsman brought these issues to 

USCIS’ attention and informally recommended that USCIS 

provide automatic, temporary extension of DACA eligibility 

and employment authorization upon timely receipt76 of a 

DACA renewal application. An automatic extension lasting 

until the adjudication of the EAD and the issuance of a new 

card would afford the agency sufficient time to undertake 

the case-by-case review of each application and contend 

with the issues raised in cases requiring additional scrutiny. 

Alternatively, the agency can set a time-limited period, 

such as the 240 days granted for certain employment-based 

renewal applications.77

76 USCIS defines timely receipt as filings received within the 150 and 120 day 

window before expiration. USCIS Webpage, “Frequently Asked Questions” (Mar. 

10, 2015); http://www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-process/frequently-asked-questions (accessed Apr. 29, 2015). 77 See generally 8 C.F.R. § 274a.12(b)(20).

An automatic temporary extension could be limited in 

scope, covering only those who timely file applications 

for renewal and only until the adjudication of the renewal 

application is complete. An extension of deferred action 

and employment authorization presumes continuing 

eligibility, but could be abrogated at any time upon a 

determination that the applicant has lost eligibility. 

Conclusion

DACA has helped hundreds of thousands of young people 

who were brought to the United States as children emerge 

from the shadows to study and work lawfully in the United 

States. The Ombudsman is considering issuing a formal 

recommendation to ensure that DACA renewal applicants 

who file timely do not suffer not suffer the impact of a lapse 

in employment authorization. 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

Provisional and Other 

Immigrant Waivers 

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates

The Provisional Waiver program helps alleviate problems 

of family separation and unpredictable processing times 

that were endemic to the prior system of overseas filing 

of waivers for immigrant visa applicants.78 In 2012 and 

2013, USCIS consolidated the processing of Form I-601, 

Application for Waiver of Grounds of Inadmissibility at 

one USCIS service center79 and implemented a stateside 

provisional waiver for immediate relatives of U.S. citizens 

who must consular process abroad.80 In January 2014, 

USCIS issued new guidance to adjudicators clarifying how 

evidence was to be assessed in certain provisional waiver 

cases.81 On November 20, 2014, Secretary Johnson published 

a memorandum titled Expansion of the Provisional Waiver 

Program, instructing USCIS to amend its 2013 regulation 

to expand the Provisional Waiver program to all statutorily 

eligible applicants.82 The Secretary noted the waiver program 

had been underutilized and directed USCIS to issue new 

regulations and policies expanding access to certain eligible 

applicants beyond immediate relatives. The Secretary also 

directed USCIS to clarify factors considered in assessing 

“extreme hardship” and criteria by which a presumption of 

extreme hardship may be determined to exist.83

78 See Ombudsman Recommendation 45, “Processing of Waivers of 

Inadmissibility” (Jun. 10, 2010); http://www.dhs.gov/ombudsmanrecommendation-processing-waivers-inadmissibility (accessed Apr. 22, 2015). 79 USCIS Webpage, “USCIS to Centralize Filing and Adjudication for Certain 

Waivers of Inadmissibility in the United States” (May 23, 2012); http://www.

uscis.gov/forms/centralized-filing-and-adjudication-form-i-601-applicationwaiver-grounds-inadmissibility (accessed Apr. 22, 2015). 80 “Provisional Unlawful Presence Waivers of Inadmissibility for Certain 

Immediate Relatives; Final Rule,” 78 Fed. Reg. 535 (Jan. 3, 2013). 81 USCIS Webpage, “Guidance Pertaining to Applicants for Provisional 

Unlawful Presence Waivers” (Jan. 24, 2014); http://www.uscis.gov/sites/

default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_

Guidance_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_

Waivers-final.pdf (accessed May 7, 2015). 82 DHS Policy Memorandum, “Expansion of the Provisional Waiver Program” 

(Nov. 20, 2014); http://www.dhs.gov/sites/default/files/publications/14_1120_

memo_i601a_waiver.pdf (accessed Mar. 7, 2015). 83 Id.

Background 

As described in the Ombudsman’s 2013 and 2014 Annual 

Reports, individuals who are seeking Lawful Permanent 

Resident status may apply for a waiver of the 3-year and 

10-year bars for unlawful presence.84 Applicants must 

demonstrate refusal of admission would result in “extreme 

hardship” to a qualifying relative.85

84 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 

Pub. L. No. 104-208. INA § 212 (a)(9)(B)(i)(I) is known commonly as the 

3-year bar, referring to the time an individual is barred from returning to 

the United States. It is triggered by 180 days or more of unlawful presence 

and a departure from the United States, followed by seeking readmission. 

INA § 212(a)(9)(B)(i)(II) is commonly known as the 10-year bar, which is 

triggered by 1 year or more of unlawful presence and a departure from the 

United States, followed by seeking readmission. 85 INA § 212(a)(9)(B)(v). A qualifying relative is a U.S. citizen or a Legal 

Permanent Resident spouse or parent of the immigrant seeking a waiver of 

unlawful presence inadmissibility. See infra section “Extreme Hardship” of 

this Report.

Traditional Waivers (Form I-601). Currently, intending 

immigrants who have departed the United States and 

been found to be inadmissible following a consular 

interview overseas may file the I-601 waiver by mail to a 

USCIS processing center in the United States. The NSC 

adjudicates Forms I-601.86 Between October 2009 and 

March 2015, USCIS approved 51,628 Form I-601 waiver 

86 USCIS Webpage, “USCIS to Centralize Filing and Adjudication for Certain 

Waivers of Inadmissibility in the United States” (May 23, 2012); http://www.

uscis.gov/forms/centralized-filing-and-adjudication-form-i-601-applicationwaiver-grounds-inadmissibility (accessed Apr. 22, 2015); Information 

provided to the Ombudsman (Apr. 9, 2014). 

21
22 | ANNUAL REPORT TO CONGRESS JUNE 2015

applications and denied 13,198. See Figure 2.2, Approvals 

and Denials of I-601 Waivers FY 2010 to FY 2015, as of 

March 2015.87

87 Information provided by USCIS (Mar. 12, 2015).

Provisional Waivers (Form I-601A). Currently, certain 

immediate relatives of U.S. citizens who apply for an 

immigrant visa and who require a waiver of inadmissibility 

for unlawful presence are eligible to file Form I-601A, 

Applications for Provisional Unlawful Presence Waiver for 

adjudication with USCIS’ National Benefits Center (NBC) 

prior to departing the United States for the immigrant visa 

interview at a U.S. embassy or consulate abroad.88 Under the 

regulations, provisional waivers are unavailable to applicants 

who USCIS has “reason to believe” may be subject to a 

ground of inadmissibility other than unlawful presence.89

88 “Provisional Unlawful Presence Waivers of Inadmissibility for Certain 

Immediate Relatives; Final Rule,” 78 Fed. Reg. 535, 552. 89 8 C.F.R. § 212.7(e)(4)(i).

USCIS processing times for provisional waivers have 

varied from 5.9 months in 2014, to 2.5 months in the 

second quarter of FY 2015.90 Between March 3, 2013 and 

January 31, 2015, USCIS approved 44,237 Forms I-601A 

and denied 17,782. See Figure 2.3, NBC I-601A Report,

for a breakdown of NBC’s receipt and adjudication data for 

provisional waivers since the program began in March 2013.

90 Information provided by USCIS (Feb. 22, 2015).

Expansion of the Provisional Waiver Program. The 

Secretary’s November 20, 2014 memorandum, Expansion 

of the Provisional Waiver Program, directs DHS to amend 

its regulations to expand access to the Provisional Waiver 

program to all statutorily eligible classes of relatives for 

whom an immigrant visa is immediately available. The 

Secretary describes the current program as underutilized, 

in part because the program was not initially extended to 

the relatives of Lawful Permanent Residents, only to those 

with U.S. citizen spouses or parents.91 Significantly, the 

Secretary’s memorandum also directs USCIS to provide 

additional guidance on the definition of “extreme hardship,” 

to clarify the factors required, and to consider criteria for a 

presumption of extreme hardship.92

91 DHS Policy Memorandum, “Expansion of the Provisional Waiver Program,” 

(Nov. 20, 2014); http://www.dhs.gov/sites/default/files/publications/14_1120_

memo_i601a_waiver.pdf (accessed Mar. 7, 2015). 92 Id.

2.2 Approvals and Denials of I-601 Waivers

(FY 2010 to FY 2015, as of Mar. 2015*)

FY

I-601 WAIVERS

APPROVAL DENIAL

2010 5,571 1,196

2011 4,537 1,814

2012 6,990 2,024

2013 12,100 2,586

2014 18,340 4,177

2015* 4,090 1,401

Total 51,628 13,198

Source: Information provided by USCIS (Mar. 12, 2015).

2.3 NBC I-601A Report

(Mar. 3, 2013 to Jan. 31, 2015*)

FY 2013 TOTAL* FY 2014 TOTAL FY 2015 YTD TOTAL SINCE MARCH 3, 2013

Receipted 25,777 47,311 19,459 92,547

Rejected 6,363 9,125 3,042 18,530

Accepted 19,414 38,186 16,417 74,017

Approved 4,470 27,536 12,231 44,237

Denied 1,451 11,356 4,975 17,782

Administratively Closed 108 263 107 478

Pending 6 377 11,145 11,520

Source: Information provided by USCIS (Feb. 22, 2015).

Identified Issues

Stakeholders have raised concerns regarding agency 

policy and practice in provisional waiver adjudications. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

2.4 USCIS Data on Reasons for Provisional Waiver Denials

(Mar. 4, 2013 to Jan. 31, 2015)

ACTION TAKEN TOTALS (AS OF JAN. 31, 2015) PERCENT BY ACTION

Approvals 44,237 70.78%

Denied — Abandonment 1,244 1.99%

Denied — Discretion 23 0.04%

Denied — In Removal Proceedings 192 0.31%

Denied — May Be Subject to Add’l Ground of Inadmissibility 4,498 7.20%

Denied — No Approved IR or Widow(er) Petition 158 0.25%

Denied — No Extreme Hardship to Spouse or Parent 9,921 15.87%

Denied — No Qualifying Relative 524 0.84%

Denied — Other 467 0.75%

Denied — Pending Adjustment of Status 35 0.06%

Denied — Prior I-601A 5 0.01%

Denied — Scheduled Interview Prior to January 3, 2013 55 0.09%

Denied — Subject to Final Removal Order 589 0.94%

Admin Closed 478 0.76%

Withdrawn 71 0.11%

Total adjudicated I-601As 62,497 100.00%

Source: Information provided by USCIS (Feb. 22, 2015).

Specifically, and as described in the Ombudsman’s 

2014 Annual Report, concerns centered on USCIS’ 

interpretation of the “reason to believe” standard applied 

when determining whether an applicant appears to be 

inadmissible on grounds other than unlawful presence.93

In a number of cases, USCIS issued summary denials 

 

without due consideration of whether an applicant’s 

criminal offense fell within the “petty offense” or “youthful 

offender” exceptions,94 or was not a crime of moral 

turpitude that would render the applicant inadmissible.95 

USCIS denied cases where applicants had only minor 

criminal arrests or convictions, such as driving without a 

license or disorderly conduct, which may not constitute 

a bar to admissibility. Summary denials also were raised 

by stakeholders in cases where fraud inadmissibility was 

alleged, but no specific facts to support the legal elements 

of fraud and misrepresentation inadmissibility were cited. 

Organizations sent correspondence to the USCIS Director 

raising these concerns and seeking revision of applicable 

standards.96 The Ombudsman also raised these concerns 

in a letter to the Director. USCIS published new guidance 

on “reason to believe” analysis in criminal inadmissibility

issues,97 but stakeholders continue to report summary 

denials on criminal grounds in which it appears USCIS did 

not analyze evidence in the record to determine whether 

“petty offense” or “youthful offender” exceptions applied.

93 See Ombudsman’s Annual Report 2014, p. 11. 94 INA § 212(a)(2)(A)(ii)(I). 95 INA § 212(a)(2)(A)(i). 96 Letter from American Immigration Lawyers Association (AILA) to USCIS 

Director Mayorkas (Aug. 6, 2013); Letter from Catholic Legal Immigration 

Network (CLINIC) to USCIS Director Mayorkas (Aug. 5, 2013); Letter from 

Ombudsman to the Director (Feb. 7, 2014). 

97 USCIS Webpage, “Guidance Pertaining to Applicants for Provisional 

Unlawful Presence Waivers” (Jan. 24, 2014); http://www.uscis.gov/sites/

default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_

Guidance_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_

Waivers-final.pdf (accessed May 7, 2015).

The Ombudsman also received a number of requests for case 

assistance seeking review of summary denials that dealt with 

matters that could have been addressed if there were a channel 

to correct service error. Provisional waiver applicants are not 

permitted to file Motions to Reopen/Reconsider or appeals.98 

USCIS reopened approximately 20 percent of the inquiries 

presented by the Ombudsman during the reporting period. 

98 “Provisional Unlawful Presence Waivers of Inadmissibility for Certain 

Immediate Relatives; Final Rule,” 78 Fed. Reg. at 554.

Ongoing Concerns

Requests for case assistance submitted to the Ombudsman, 

as well as information provided by stakeholders and USCIS 

23
24 | 

during this reporting period, continue to demonstrate 

concerns with:

M Summary denials in “reason to believe” cases, either on 

criminal, fraud, smuggling, or prior unlawful presence 

and reentry grounds; 

M RFEs that do not assess particular evidence previously 

provided by the applicant;

M Inconsistent application of the “extreme hardship” 

standard; and 

M The lack of any administrative appeal or other 

mechanism to correct administrative error.99

99 Of the requests for case assistance submitted to the Ombudsman, 125 

pertained to Form I-601A provisional waivers. Forty-three percent of these 

requests for case assistance alleged administrative error, 31percent sought to 

challenge summary denials on criminal, smuggling, prior unlawful presence 

and reentry, or fraud grounds; and 26 percent sought reconsideration of denials 

that attorneys found inconsistent with extreme hardship standards applied 

elsewhere, such as in I-601 adjudications, or where such denials disregarded 

compelling documentation. 

On December 16, 2014, the Ombudsman met with the 

USCIS Associate Director for the Field Operations 

Directorate and leaders from the NBC, which has 

long maintained open communication channels with 

stakeholders.100 During this meeting, USCIS officials 

reiterated that the final determination on admissibility 

rests with DOS. For that reason, USCIS takes a cautious 

approach when the facts of the case may give rise to 

grounds of inadmissibility other than unlawful presence. In 

addition, while acknowledging RFEs often use standardized 

language listing all possible additional evidence, USCIS 

believes such RFEs are a useful mechanism for conducting 

a wide search for information.101

100 Director Rodriguez reiterated this point in the USCIS Response to the 

Ombudsman’s 2014 Annual Report, which was received on June 9, 2015. 101 Information provided to the Ombudsman (Dec. 16, 2014). See also USCIS 

Policy Memorandum, “Requests for Evidence and Notices of Intent to Deny;” 

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/

June%202013/Requests%20for%20Evidence%20(Final).pdf (accessed May 

18, 2015). (“[A]n RFE is not to be avoided; it is to be used when the facts 

and the law warrant. At the same time, an RFE is not to be issued when the 

evidence already submitted establishes eligibility or ineligibility in all respects 

for the particular benefit or service. An unnecessary RFE can delay case 

completion and result in additional unnecessary costs to both the government 

and the individual”). 

When asked about summary denials in cases involving 

criminal issues, USCIS indicated its adjudicators generally 

do not undertake legal analysis of criminal grounds of 

inadmissibility. The USCIS guidance on provisional 

waivers from January 24, 2014 requires USCIS officers to 

review all evidence submitted to determine whether there 

may be a petty offense or youthful offender exception to 

criminal inadmissibility when making “reason to believe” 

determinations.102 Based on discussions in this meeting, 

the Ombudsman resubmitted case assistance requests to 

USCIS where the Ombudsman believed documentation 

presented by the applicant indicated the criminal ground 

fell under an exception. After review, USCIS reopened a 

number of cases and other requests remain pending.103

102 USCIS Webpage, “Guidance Pertaining to Applicants for Provisional 

Unlawful Presence Waivers” (Jan. 24, 2014); http://www.uscis.gov/sites/

default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_

Guidance_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_

Waivers-final.pdf (accessed May 7, 2015). 103 In these cases, attorneys had provided briefs and certified criminal records 

supporting the petty offense exception under INA § 212(a)(2)(A)(ii). 

USCIS would receive more prompt feedback regarding 

necessary changes in the program if it permitted Motions 

to Reopen/Reconsider or appeals. Stakeholders have 

compiled cases over many months to document to USCIS 

the need to make corrections.104 This is inefficient for 

USCIS, as well as for the applicants in the provisional 

waiver process, as it does not allow for prompt correction 

of errors and hinders the timely processing of immigrant 

waivers, a major goal of this program.

104 In addition to the letters to USCIS Director Mayorkas from AILA on August 

6, 2013 and CLINIC on August 5, 2013 regarding “reason to believe” denials, 

AILA wrote to USCIS on March 13, 2015 urging the agency to reconsider 

broad denials for “reason to believe,” to evaluate the use of template requests 

for evidence on extreme hardship, to re-evaluate the lack of appeals and 

motions, and to create additional guidance for extreme hardship standard and 

the burden of proof needed, among other concerns. 

Case Example—Standardized RFEs and Extreme 

Hardship Denial 

In one recent example of a provisional waiver denial, 

the applicant had first been granted termination of 

removal proceedings by ICE based on substantially the 

same evidence later presented to USCIS in support of 

a provisional waiver. The applicant, a Honduran man in 

a same-sex marriage with a U.S. citizen, has lived in the 

United States for 14 years. He had medical documentation; 

presented extensive documentation of discrimination and 

mistreatment of homosexuals and same-sex couples in 

Honduras; and presented evaluations showing psychological 

hardship to the U.S. citizen spouse. A standardized RFE was 

issued, which did not identify any particular deficiency with 

the application. USCIS then issued a denial based on the 

medical and psychological documentation being more than 

a year old. The evidence that homosexual marriage was 

not legal in Honduras and that such unions would subject 

the couple to harassment, violence, and discrimination was 

similarly dismissed as outdated. Without specific notice 

in RFEs, stakeholders are unaware of deficiencies in the 

filing and cannot easily assess what evidence is needed to 

overcome them. 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 25

Case Example—Reason to Believe Denial 

In some cases, applicants seek to contest factual and 

legal determinations USCIS has made in provisional 

waiver decisions, but without a motion to reopen or an 

appeal available. Applicants lack a forum to present these 

arguments. In one example, USCIS denied a provisional 

waiver application, alleging there was reason to believe the 

individual was inadmissible due to prior unlawful presence 

in the United States from 1990 to 1993 (prior to the 

individual’s most recent entry). USCIS stated the multiple 

entries created reason to believe the applicant was 

inadmissible for having triggered the inadmissibility ground 

under INA section 212(a)(9)(C), commonly known as the 

“permanent bar” for prior unlawful presence and illegal 

reentry. The applicant argued in the original submission 

that INA section 212(a)(9)(C) is only applicable to 

unlawful presence accrued after April 1, 1997, and to 

reentries after April 1, 1998, when the new section of law 

became effective.105 These arguments were not addressed 

in the denial or in the subsequent negative response to 

the Ombudsman.

105 USCIS Policy Memorandum, “Consolidation of Guidance Concerning 

Unlawful Presence for Purposes of §§ 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) 

of the Act” (May 6, 2009); http://www.uscis.gov/sites/default/files/USCIS/

Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.

PDF (accessed May 7, 2015).

Forty-three percent of requests for case assistance 

submitted to the Ombudsman since the beginning of the 

I-601A program have involved denials for administrative 

error. For example, some denials were based on failure to 

provide evidence of payment of the required immigrant visa 

fee to DOS, when the applicant supplied documentation 

that the payment had been made. In one case the applicant 

paid the visa fees twice, just to be sure she would not 

have a problem with the provisional waiver. Lacking the 

option for filing a Motion to Reopen/Reconsider or appeal, 

applicants have had to rely on the Ombudsman’s case 

resolution services; otherwise, there is no recourse to have 

USCIS re-examine such errors, and individuals would have 

to re-file and again pay filing fees. 

Conclusion

Provisional waivers have the potential to help tens of 

thousands of eligible immigrants avoid lengthy periods 

of family separation. However, there is no remedy, aside 

from re-filing or seeking Ombudsman case assistance, to 

correct administrative errors, or erroneous factual findings 

and legal interpretations. When the regulations are revised 

to expand the Provisional Waiver program USCIS should 

afford applicants the option to file Motions to Reopen/

Reconsider or an appeal, along with clarifying extreme 

hardship factors and the circumstances that may lead to 

its presumption.

Extreme Hardship

Responsible USCIS Offices: Office of Policy and 

Strategy and Field Operations and Service Center 

Operations Directorates

As discussed above, as part of the Administration’s 

executive action on immigration, Secretary Johnson issued 

a memorandum on November 20, 2014, directing USCIS 

to expand access to the Provisional Waiver program to 

all statutorily eligible classes of relatives for whom an 

immigrant visa is immediately available.106 The Secretary 

stated, “The purpose behind today’s announcement remains 

the same as in 2013—family unity.”107 He also noted “[t]

o date, approximately 60,000 individuals have applied for 

the provisional waiver, a number that ... is less than was 

expected.”108 In addition, the Secretary directed USCIS to 

clarify the factors contemplated in determining whether the 

“extreme hardship” standard has been met, and to consider 

criteria by which a presumption of extreme hardship 

may be determined to exist such that it would provide for 

broader use of the waiver.109 These changes will improve 

the program and assist numerous families who would have 

otherwise faced long periods of separation, as they waited 

for processing of their waivers from overseas.

106 See DHS Policy Memorandum, “Expansion of the Provisional Waiver 

Program” (Nov. 20, 2014); http://www.dhs.gov/sites/default/files/

publications/14_1120_memo_i601a_waiver.pdf (accessed Mar. 13, 2015). 

See also 78 Fed. Reg. 535-75 (Jan. 3, 2013). In discussing the presumption 

of hardship, the Secretary cited to the example of the presumption applied 

by regulations under the 1997 Nicaraguan Adjustment and Central American 

Relief Act, Pub. L. No. 105-100; 8 C.F.R. § 240.64(d). 107 DHS Policy Memorandum, “Expansion of the Provisional Waiver Program” 

(Nov. 20, 2014); http://www.dhs.gov/sites/default/files/publications/14_1120_

memo_i601a_waiver.pdf (accessed Mar. 13, 2015). 108 Id. 109 Id.

Background

Applicants for an immigrant visa abroad or those eligible 

to file Form I-485, Application to Register Permanent 

Residence or Adjust Status in the United States, but are 

subject to grounds of inadmissibility, may file Form I-601 

to request a waiver on several grounds, including fraud, 
26 | 

unlawful presence, and lesser criminal grounds.110 I-601 

waivers also require a showing of extreme hardship to 

a qualifying relative.111 Since 2012, I-601 waivers filed 

by immigrant visa applicants from overseas are sent to 

the Phoenix Lockbox, a USCIS receipting center, and are 

adjudicated by the NSC, under USCIS’ Service Center 

Operations Directorate.112

110 INA §§ 212(a)(9)(B)(v), 212(i), and 212(h). With few exceptions, eligibility 

to file for adjustment of status in the United States is limited to persons who 

are lawfully admitted to the United States; that is, inspected, admitted, or 

paroled. See INA § 245(a)-(c) or (i). Therefore, many persons are unable to 

file for adjustment or for an I-601 waiver while in the United States. 111 INA §§ 212 (a)(9)(B)(v), 212(i), and 212(h). 112 USCIS Webpage, “Transition to Centralized I-601 Filing” (May 31, 2012); 

cited in Ombudsman’s Annual Report 2013, p.25.

Conversely, applicants who are not eligible to file Form 

I-485 in the United States, but who are residing in the 

United States and have a U.S. citizen spouse or parent may 

file Form I-601A prior to departing for an immigrant visa 

appointment at a consulate overseas.113 The provisional 

waiver only waives grounds of inadmissibility for unlawful 

presence and applicants must show extreme hardship to a 

U.S. citizen or Lawful Permanent Resident spouse or parent 

is still required. 

113 8 C.F.R. § 212.7(e). See also section on “Provisional and Other Immigrant 

Waivers,” supra of this Report. 78 Fed. Reg. 535-75 (Jan. 3, 2013).

The extreme hardship standard has long been a requirement 

for many different immigration benefits and forms of relief. 

With both I-601 and I-601A waivers, once the requisite 

familial relationship is established and basic eligibility 

requirements are met, the next step is demonstrating that 

the qualifying relative will suffer extreme hardship if the 

foreign national applicant is not admitted to the United 

States. In addition to being one of the factors for various 

waivers of inadmissibility, including for fraud114 and 

criminal conduct,115 extreme hardship was a requirement 

for suspension of deportation,116 and be a requirement 

for relief under the Nicaraguan Adjustment and Central 

American Relief Act (NACARA),117 self-petitioning 

under VAWA,118 and one of the waivers of the joint 

petition requirement for conditional residents.119 Despite 

the recurrence of the term in immigration law, “extreme 

hardship” is not defined in the statute or the regulations and 

the federal courts have not specifically defined it in case 

law.120 In the words of the Board of Immigration Appeals 

(BIA), it “is not a definable term of fixed and inflexible 

content or meaning.”121

114 INA § 212(i). 115 INA § 212(h). 116 Former INA § 244(a)(1996). 117 Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. 

No. 105-100, tit. II, 111 Stat. 2160, 2193–2201 (1997), as amended. 118 INA § 204(a)(1)(A)-(B). 119 INA § 216(c)(4)(C). 120 See generally DHS Policy Memorandum, “Expansion of the Provisional 

Waiver Program” (Nov. 20, 2014); http://www.dhs.gov/sites/default/files/

publications/14_1120_memo_i601a_waiver.pdf (accessed Mar. 13, 2015). 121 Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964); see also Matter of 

Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999).

Instructions to both Forms I-601122 and I-601A123

categorize hardship factors into five groups: healthrelated factors, financial considerations, education-related 

factors, personal considerations, and special factors. 

Extreme hardship generally means something more than 

commonplace hardship,124 and depends upon the facts and 

circumstances unique to each case.125 Between October 

122 See USCIS Webpage, “Instructions for Applications for Waiver of Grounds of 

Inadmissibility” (Dec. 16, 2012); http://www.uscis.gov/sites/default/files/files/

form/i-601instr.pdf (accessed Apr. 3, 2015). 123 Id. 124 Matter of Pilch, 21 I&N Dec. 627, 631 (BIA 1996). 125 Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

1, 2013 and January 31, 2015, USCIS adjudicated 62,497 

Form I-601A applications, denying nearly 16 percent for 

lack of extreme hardship.126 The success of a waiver often 

hinges on the applicant establishing extreme hardship.

126 Information provided by USCIS (Feb. 6, 2015).

Identified Issue

From the start of the Provisional Waiver program in 2013, 

through March 2015, over 26 percent of provisional 

waiver-related requests for case assistance submitted 

to the Ombudsman were from applicants questioning 

USCIS’ application of the extreme hardship standard and/

or claiming inconsistent adjudication of hardship between 

NSC, which adjudicates Forms I-601, and NBC, which 

adjudicates Forms I-601A. Specifically, applicants perceive 

NBC may be applying a standard of proof that is higher 

than the required preponderance of the evidence.127 As 

described in precedent decisions cited by USCIS’ materials, 

preponderance requires the evidence demonstrate the 

applicant’s claim is 

127 Information provided through requests for case assistance. While it is 

difficult to directly compare I-601 and I-601A adjudications of extreme 

hardship, stakeholders perceive, and Ombudsman inquiries demonstrate, that 

sometimes a stricter standard is being applied by USCIS for I-601As. As 

the two applications differ, and are adjudicated by different USCIS offices, it 

is difficult to compare them directly in available data. See also Information 

provided by USCIS (Feb. 6, 2015); AILA’s letter to the DHS Senior Counsel 

to the Secretary, “Re: Recommendation on the Expansion of the Provisional 

Waiver Program and Additional Guidance on Extreme Hardship” (Mar. 13, 

2015) in which stakeholder reports of provisional waiver denials on extreme 

hardship are also discussed. 

“[P]robably true, where the determination of truth 

is made based on the factual circumstances of 

each individual case .... Thus, in adjudicating the 

application pursuant to the preponderance of the 

evidence standard, the director must examine each 

piece of evidence for relevance, probative value, 

and credibility, both individually and within the 

context of the totality of the evidence, to determine 

where the fact to be proven is probably true. Even 

if the director has some doubt as to the truth, if the 

petitioner submits relevant, probative, and credible 

evidence that leads the director to believe that the 

claim is ‘more likely than not’ or ‘probably true,’ 

the applicant or petitioner has satisfied the standard 

of proof.”128

128 See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

USCIS training materials note the preponderance standard 

should be the same in I-601A and I-601 adjudications, 

although no examples are given that might clarify 

its meaning.129

129 Information provided by USCIS (Feb. 22, 2015). USCIS’ I-601 training 

materials on extreme hardship state that the standard of proof the applicant 

must meet is ”preponderance,” and cite to Matter of Chawathe, 25 I&N Dec. 

369 (AAO 2010). USCIS’ I-601A training materials on program overview 

and extreme hardship indicate the assessment of whether extreme hardship 

is established and whether discretion is warranted is “the same for both 

forms,” and furthermore “the same for any waiver that requires the applicant 

to demonstrate that his/her removal or inadmissibility would cause extreme 

hardship” to a qualifying relative. USCIS Training Materials, “Extreme 

Hardship & Discretion: Adjudicating I-601” (Mar. 4, 2012); “Provisional 

Unlawful Presence Waiver Form I-601A: Program Overview” 

(Jun. 4, 2012); “Adjudicating Form I-601A: Extreme Hardship and 

Discretion” (Jul. 9, 2012).

Some cases reviewed by the Ombudsman during this 

reporting period seem to indicate USCIS’ use of a standard 

that appears higher than preponderance. In such cases, 

applicants were denied on extreme hardship grounds 

despite voluminous particularized evidence of such 

hardship to their qualifying relative. Furthermore, evidence 

supplied by applicants was sometimes dismissed without 

evaluation of its credibility, relevance, or probative value. 

Stakeholders filing requests for case assistance with 

the Ombudsman also question whether the evidence of 

hardship initially submitted with their application was 

reviewed prior to issuance of an RFE. USCIS requests 

seeking additional hardship evidence sometimes use 

standardized language and do not analyze evidence 

submitted, depriving applicants of notice of particular 

deficiencies perceived by the adjudicator. Nonetheless, 

denials are sometimes very specific in basing a decision 

on lack of a particular document not previously requested. 

Applicants may not seek review of such decisions through 

normal administrative channels; i.e., Motions to Reopen/

Reconsider or appeal, because they are not available to 

provisional waiver applicants.130

130 “Provisional Unlawful Presence Waivers of Inadmissibility for Certain 

Immediate Relatives; Final Rule,” 78 Fed. Reg. at 553.

27
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Case Examples

A provisional waiver applicant was denied for insufficient 

hardship to her U.S. citizen spouse. The applicant and her 

spouse lived with three elderly relatives (parents and an 

86-year-old grandfather). The couple also had a young 

U.S. citizen child. The dependent relatives had significant 

medical needs and required constant attention from the 

applicant and her U.S. citizen spouse in the home. The 

family’s documentation showed a close-knit family with a 

small income. While several documents were supplied to 

prove the applicant’s income and expenses, USCIS found 

financial hardship to be lacking, as the dependent relatives 

in the household had not shown whether they had any 

income. USCIS issued a general RFE containing standardized 

language about extreme hardship, and did not request any 

particular document. Yet the denial was very specific as 

to the documents pertaining to the dependents’ income 

that the adjudicator found to be lacking. The Ombudsman 

has brought this case to USCIS’ attention, but the agency 

declined to reopen the case.

In another case, USCIS concluded that the applicant lacked 

sufficient financial and emotional hardship evidence. The 

denial indicated the applicant may have underreported his 

income in some tax years, as evidenced by the funds he sent 

to his relatives abroad. The adjudicator further questioned 

why the applicant did not supply more evidence of financial 

obligations, and found the applicant had failed to prove 

that sufficient income could not be earned in Mexico to 

support the family. None of these documents had been 

requested in the general RFE sent to the applicant prior to 

the denial. Instead, the standardized RFE recited the law 

but did not analyze any of the submitted documents for 

credibility or probative value. In response to the RFE, the 

applicant had supplied 28 particular documents to support 

specific hardships that his qualifying relative, the U.S. citizen 

spouse, would face. The couple had a U.S. citizen child 

and were expecting a second child. The applicant ran a 

janitorial services business which supplied the family’s entire 

financial support. The U.S. citizen spouse was a student 

in a community college who had three sisters, including 

one who was disabled and with whom she had always 

maintained a close bond. Her parents were also living in the 

United States. Additionally, the applicant supplied 14 more 

specific documents on personal and financial hardship. The 

Ombudsman brought this case to USCIS’ attention, and the 

agency reopened and approved the waiver. 

In another example, a provisional waiver applicant was 

denied on extreme hardship grounds despite voluminous 

supporting evidence. The applicant submitted with his waiver 

application 247 pages of detailed hardship documents 

relating to the family’s financial, medical, and psychological 

situation, as well as country conditions. USCIS sent an RFE 

with a recitation of the law and a generalized request that 

the applicant needed to demonstrate extreme hardship, 

but with no discussion of any deficiency in the documents 

submitted or what was missing. The applicant responded 

with an additional 20 exhibits supporting the details of the 

family’s situation, the losses that separation would cause, 

and the medical and financial situation of the qualifying 

relative. The final denial stated, for the first time, that there 

was insufficient evidence of the family’s finances to evaluate 

whether it was “extreme,” and that there was insufficient 

evidence to establish that the qualifying spouse would be 

impacted by the needs of several family members with 

medical conditions that required care. Prior to the decision, 

the applicant had supplied financial documents including 

tax returns, paycheck stubs, rent receipts, medical bills, utility 

bills, and loans. He also provided documents supporting the 

medical conditions and the impact on the qualifying relative. 

After an inquiry by the Ombudsman, USCIS reopened this 

case and approved it.

In a meeting with the Ombudsman on December 16, 

2014, NBC leadership and staff explained that the extreme 

hardship determination process for provisional waiver 

applicants, in comparison to I-601 waiver applicants, 

is more demanding. NBC leadership and staff further 

clarified that many I-601 applicants have already left the 

United States and are therefore currently experiencing the 

hardship, whereas the hardship to the qualifying relative 

in the I-601A context is prospective. When addressing the 

issue of standardized language RFEs, NBC leadership and 

staff again reiterated that forthcoming hardship makes it 

difficult for an adjudicating officer to deduce the type of 

documentation an applicant should submit in order to meet 

the standard, thus broad requests for all evidence are made.

Ongoing Plan of Action

The Ombudsman suggests several steps that will improve 

current provisional waiver adjudications, especially in light 

of the announced expansion of the waiver program. 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

The Legal Standard and RFEs. While USCIS considers 

the regulatory changes prescribed by the Secretary’s 

Memorandum, it should re-emphasize the standard used to 

make an extreme hardship determination—preponderance 

of the evidence and provide adjudicators with case 

examples to demonstrate when the standard has been met. 

USCIS should also ensure adjudicators analyze all evidence 

supplied by provisional waiver applicants for relevance, 

probative value, and credibility, and issue RFEs that specify 

particular areas of evidence sought providing applicants 

with adequate notice of deficiencies. Further, the agency 

should consider an avenue for administrative review; the 

current prohibition on motions and appeals means USCIS 

lacks a process for self-correction, and applicants lack the 

means for administrative review of erroneous denials. 

Presumption of Extreme Hardship in I-601A Applications. 

USCIS could create a presumption of extreme hardship 

consistent with that applied in NACARA applications.131 

131 8 C.F.R. §§ 240.60-240.70.

Under the regulations, NACARA applicants shall be 

presumed to have established that deportation or removal 

from the United States would result in extreme hardship to 

a U.S. citizen or Legal Permanent Resident spouse, parent, 

or child.132 The regulations state a presumption of extreme 

hardship shall be rebutted if a preponderance of evidence 

in the record establishes that it is more likely than not that 

neither the applicant nor the qualified relative would suffer 

extreme hardship if the applicant were deported or removed 

from the United States.133

132 8 C.F.R. § 240.64(d)(1). 133 8 C.F.R. § 240.64(d)(2).

The NACARA presumption was created because applicants 

were deemed generally to have had similar experiences 

making them eligible for the extreme hardship determination. 

In the context of I-601A waiver applicants, there are certain 

common factors or experiences for many applicants that 

could also justify adopting an extreme hardship presumption. 

These could include, but are not limited to:

M Length of time in the United States—no less than 5 years 

of physical presence in the United States; 

M Length of marriage—no less than 3 years;

M Family ties—one immediate family member other than 

the qualifying relative who is a U.S. citizen or Lawful 

Permanent Resident;

M Work history—No less than 3 years of work history;

M Severe medical condition—chronic or prolonged illness 

or injury; and

M Country of origin has safety, political, and natural 

 disaster concerns

The hardship factors considered by USCIS in provisional 

waiver applications134 are consistent with the factors used 

in NACARA.135 

134 These factors include: health-related factors, financial considerations, 

education-related factors, personal considerations, and special factors. See

USCIS Webpage, “Instructions for Application for Provisional Unlawful 

Presence Waiver” (Mar. 4, 2013); http://www.uscis.gov/sites/default/files/files/

form/i-601ainstr.pdf (accessed May 4, 2015). 135 8 C.F.R. § 240.58(b).

Once the presumption is established, the burden would 

shift to the government. The creation of a presumption 

transfers the focus of inquiry, such that an adjudicator can 

evaluate whether there is sufficient evidence in the record 

to disprove extreme hardship.136 The presumption is also 

overcome when the evidence in the record shows no factors 

associated with the extreme hardship.137

136 8 C.F.R. § 240.64(d)(3). 137 8 C.F.R. § 240.64(d)(2). 

Conclusion

Issuing clarifying guidance on extreme hardship and a 

presumption of hardship under certain conditions would 

expand the use of this program and improve consistency 

in adjudications. Doing so will also help achieve the goal 

of family unity that the program is intended to serve. The 

Ombudsman will continue to work with USCIS and DHS 

leadership to address issues in the provisional waiver 

program and promote family unity.

Military Immigration Issues 

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates

Members of Congress and U.S. military leaders have 

consistently emphasized to DHS that military immigration

issues, including military naturalization, regularization 

of military dependent immigration status, and preserving 

military family unity, are critical aspects of military 

29
30 | 

readiness.138 The Ombudsman continues to review USCIS’ 

support of members of the U.S. military and their families 

through the administration of immigration benefits and 

services. In previous years, the Ombudsman reviewed 

and commented on the USCIS military naturalization 

process and the delivery of immigration services to military 

family members.139 Through site visits to USCIS field 

offices, teleconferences with USCIS staff, and stakeholder 

engagement, the Ombudsman has learned that USCIS 

continues to enhance outreach efforts to service members 

and their parents, spouses and children.

138 See Letter from Lofgren, Thonberry, Conyers, Pence, et. al, Members of 

the House of Representatives to then Secretary of Homeland Security Janet 

Napolitano (Jul. 9, 2010); see Letter from then Secretary of Homeland 

Security Janet Napolitano to Zoe Lofgren, Member of the House of 

Representatives (Aug. 30, 2010), http://cmsny.org/wp-content/uploads/

Napolitano-Letter-08.30.101.pdf (accessed May 19, 2015). 139 See Ombudsman’s Annual Reports 2010, pp. 63-66; 2009, pp. 37-39; and 

2008, p. 58. 

Background 

The INA authorizes USCIS to expedite the naturalization 

process for current members of the U.S. armed forces, 

recently discharged members, and deceased servicemembers.140 Certain foreign nationals may also enlist 

in the military and earn U.S. citizenship through the 

Military Accession Vital to the National Interest (MAVNI) 

140 INA § 328; INA § 329. See also Executive Order No. 13269 (Jul. 3, 2002), 67 

Fed. Reg. 45287 (Jul. 8, 2002). 

program141 if they have special, highly needed skills, 

such as having expertise in languages that are critical to 

military operations.142

141 Department of Defense, “Military Accession Vital to the National Interest;” 

http://www.goarmy.com/benefits/additional-incentives/mavni.html (accessed 

May 4, 2015). 142 Foreign nationals must be a nonimmigrant (E, F, H, I, J, K, L, M, O, P, Q, R, 

S, T, TC, TD, TN, U or V status), be in status as an asylee, refugee, Temporary 

Protected Status (TPS), or be a recipient of the DACA program. Applicants 

must legally reside in the United States for a minimum of 2 years prior to joining 

the military (excluding DACA) without a single absence from the country 

lasting longer than 90 days. Applicants must have a high school diploma and 

a qualifying score on the Armed Forces Qualification Test. See Department of 

Defense, “Military Accession Vital to the National Interest;” http://www.goarmy.

com/benefits/additional-incentives/mavni.html (accessed May 4, 2015).

USCIS established the “Naturalization at Basic Training 

Initiative” in August 2009 with the U.S. Army to provide 

noncitizen enlistees the opportunity to naturalize when 

they graduate from basic training.143 Under this initiative, 

USCIS conducts all naturalization processing including 

the capture of biometrics, the naturalization interview and 

administration of the Oath of Allegiance on the military 

installation. Since 2009, USCIS expanded the initiative 

to the Navy, Air Force, and the Marine Corps in 2013. 

Fort Jackson in South Carolina became the first military 

installation in the nation with an onsite USCIS office 

in 2012, under the Charleston Field Office.144 The Fort 

Jackson sub-office has processed over 3,065 naturalization 

applications for soldiers, averaging over 600 each year.145 

In February 2015, USCIS opened their second sub-office in 

support of the Naturalization at Basic Training Initiative.146 

Co-located at Fort Benning in Georgia, the sub-office 

features full-time USCIS officers as well as a biometrics 

agent. Both installations serve as basic training sites for the 

U.S. Army, and USCIS is considering additional co-located 

offices in the other two Army basic training locations: Fort 

Knox in Kentucky and Fort Sill in Oklahoma.

143 USCIS Webpage, “Fact Sheet: Naturalization Through Military Service” 

(Nov. 12, 2014); http://www.uscis.gov/news/fact-sheets/naturalizationthrough-military-service-fact-sheet (accessed Apr. 6, 2015). 144 Emilie Arroyo, Federal Officials Push for More Citizenship for Military 

Members, Feb. 25, 2015; http://www.scnow.com/news/state/article_c9490d8bb0de-58f9-b59e-eb43841cb208.html (accessed Apr. 6, 2015). 145 Information provided by USCIS (Apr. 22, 2015). 146 Emilie Arroyo, Federal Officials Push for More Citizenship for Military 

Members, Feb. 25, 2015; http://www.scnow.com/news/state/article_c9490d8bb0de-58f9-b59e-eb43841cb208.html (accessed Apr. 6, 2015).

These USCIS sub-offices at military bases help ensure that 

foreign national soldiers proceed through the naturalization 

application process while simultaneously going through 

basic training. Once a service member graduates from 

basic training, they receive orders for assignments at dutystations both home and overseas, which makes the process 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

of finalizing a naturalization application increasingly 

difficult to coordinate. Having USCIS officers co-located 

to handle processing alleviates challenges with scheduling 

in-person interviews at a time and location feasible for 

service members and enables them to partake in required 

military training without interruption. It also prevents 

delays caused by file transfers between USCIS offices, 

which would be required after members of the Armed 

Services move around the country and the world after basic 

training ends.

Until 2013, USCIS was required to process military-related 

naturalization applications within 6 months of filing.147 

While no longer required by law to meet this timeframe, 

USCIS continues to adjudicate military-related naturalization 

applications within this goal. During calendar year 2014, 

USCIS naturalized 3,569 military service members both 

in the United States and overseas.148 Since 2002, USCIS 

has naturalized 102,266 members of the military and 2,318 

military spouses, with 11,548 of those service members 

becoming U.S. citizens during naturalization ceremonies that 

USCIS undertook in 34 foreign countries, some in remote 

locations thousands of miles from the nearest USCIS office: 

Afghanistan, Albania, Australia, Bahrain, China (Hong 

Kong), Cuba (Guantanamo), Djibouti, El Salvador, Georgia, 

Germany, Greece, Haiti, Honduras, Iceland, Iraq, Italy, 

Jamaica, Japan, Jordan, Kenya, Korea, Kosovo, Kuwait, 

Kyrgyzstan, Libya, Mexico, the Philippines, Qatar, South 

Korea, Spain, Thailand, Turkey, the United Arab Emirates, 

and the United Kingdom.149

147 INA § 328(g). Repealed, Pub. L. 110-382, § 4. 122 Stat. 4089 (2008). 148 Information provided by USCIS (Apr. 22, 2015). 149 USCIS Webpage, “Fact Sheet: Naturalization Through Military Service” 

(Nov. 12, 2014); http://www.uscis.gov/news/fact-sheets/naturalizationthrough-military-service-fact-sheet (accessed Apr. 6, 2015).

USCIS provides a toll-free help line, 1-877-CIS-4MIL (1-

877-247-4645), and an email address, militaryinfo.nsc@

dhs.gov, for members of the military and their families.150 

In districts with large military populations, USCIS has 

designated Immigration Services Officers who coordinate 

with military liaison officers to provide service members 

and their families with immigration benefits information, 

expedite fingerprinting, perform interviews, and conduct 

naturalization ceremonies at major military installations.

150 USCIS Webpage, “Military” (Feb. 17, 2011); http://www.uscis.gov/military

(accessed Apr. 6, 2015).

Every military installation also has a designated point-ofcontact, generally in the personnel division or the Judge 

Advocate General’s Office, to assist members of the 

military prepare and file naturalization applications. USCIS 

officers work closely with these individuals to coordinate 

information sessions with service members and military 

 family communities.

Providing Immigration Services to Military Members and 

Their Families. Throughout the reporting period, USCIS 

has taken steps to improve the delivery of immigration 

services to military members and their families. The 

Ombudsman understands that USCIS conducted outreach 

engagements to service members and military families on 

installations across the country, sharing information about 

naturalization and parole in place. 

Implementation of Discretionary Relief for Military 

Families. In 2013, USCIS issued long-awaited guidance 

providing parole in place for spouses, children, and parents 

of active members of the Armed Forces of the United States 

and other military family members.151 Parole in place is 

an exercise of USCIS discretionary authority to parole 

into the United States an individual who, although already 

physically present in the United States, was not previously 

lawfully admitted.152 This discretionary authority is 

statutory and enables the Department to make case-bycase determinations for urgent humanitarian reasons or 

significant public benefit.153 The spouse, child, or parent of 

a service member who is paroled in place may then become 

eligible to adjust status and become a Lawful Permanent 

Resident of the United States. Generally, a person cannot 

adjust status unless he or she has been “admitted or 

paroled” into the United States.154 If not for parole in place, 

these family members would need to leave the United 

States to consular process, often triggering multiple year 

inadmissibility bars, and would face long-term separation 

from their service member.155 This policy provides better 

consistency in USCIS’ exercise of discretionary relief and 

helps ensure that our military personnel can focus on their 

readiness, rather than their families’ immigration status.

31

151 USCIS Policy Memorandum, “Parole of Spouses, Children and Parents of 

Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the 

Ready Reserve, and Former Members of the U.S. Armed Forces or Selected 

Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under 

Immigration and Nationality Act § 212(a)(6)(A)(i)” (Nov. 15, 2013); http://

www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_

Parole_in_Place_Memo_.pdf (accessed Mar. 9, 2015). 152 Id. 153 INA § 212(d)(5); 8 U.S.C § 1182 (d)(5). 154 INA § 245(a). 155 INA § 212(a)(9)(i) and INA § 212 (a)(9)(ii). 
32 | 

USCIS reported that prior to February 2014, they did 

not track parole in place requests from military family 

members.156 In FY 2014, 2,514 requests were made by 

the spouse, parent, and/or child of active-duty, reserve or 

veteran service-members representing over 52 countries of 

origin.157 To date in FY 2015, USCIS has received 1,809 

parole in place requests from military family members 

representing 45 different countries of origin.158 USCIS 

indicated that the average processing time of parole in place 

requests was 93.24 days for FY 2014 and 66.64 days for 

FY 2015 to date.159 While some USCIS Field Offices have 

shared information about how their office evaluates and 

processes these requests, no clear field guidance has been 

shared by USCIS Headquarters.160

156 Information provided by USCIS (May 19, 2015). 157 Id. 158 Id. 159 Id. 160 Information provided by USCIS (May 5, 2015). During a training held for 

legal representatives in Greensboro, North Carolina in August 2014, USCIS 

Raleigh Field Office shared information about how it evaluates and processes 

military parole in place requests locally.

During FY 2015, the Ombudsman conducted outreach 

visits to Fort Bragg, North Carolina; Fort Benning, 

Georgia; Fort Jackson, South Carolina; and Camp Lejeune, 

North Carolina to meet with stakeholders and USCIS 

to learn about the delivery of immigration benefits and 

services in those areas. The Ombudsman strongly supports 

USCIS efforts to assist the Armed Forces of the United 

States in their essential mission, and will continue to 

monitor the actions taken to support military personnel and 

their families. 

The Haitian Family 

Reunification Parole Program

Responsible USCIS Office: Refugee, Asylum and 

International Operations Directorate

On December 18, 2014, USCIS implemented the Haitian 

Family Reunification Parole (HFRP) program to expedite 

family reunification for certain Haitian family members 

of U.S. citizens and Lawful Permanent Residents and to 

promote a safe, legal, and orderly migration from Haiti to 

the United States. The HFRP program will allow eligible 

Haitians who are beneficiaries of an approved Form 

I-130, Petition for Alien Relative to join family members 

in the United States up to 2 years before their immigrant 

visas become available.161 Through this program, DHS 

anticipates paroling 5,000 Haitians into the United States 

by 2016.162

161 “Implementation of Haitian Family Reunification Parole Program; Notice,” 79 

Fed. Reg. 75581 (Dec. 18, 2014). 162 USCIS Teleconference, “USCIS Invitation: Haitian Family Reunification 

Parole (HFRP) Program” (Feb. 26, 2015). 

Background

In response to the devastating earthquake in January 2010, 

then Secretary of Homeland Security Janet Napolitano 

designated Haiti for Temporary Protection Status (TPS) 

based on extraordinary and temporary conditions within the 

country, citing the economic damage, in billions of dollars, 

to the Haitian economy.163 According to the International 

Organization for Migration, approximately 80,000 Haitians 

remain displaced.164 These dire conditions persist, leading 

Secretary Johnson to reauthorize Haiti’s TPS designation 

in 2014.165

163 “Extension of the Designation of Haiti for Temporary Protected Status; 

Notice,” 79 Fed. Reg. 11808 (Mar. 3, 2014). Congress proposed the Haitian 

Family Reunification Parole Program (FRPP) to President Obama by a letter 

of support on December 15, 2011; http://www.cgdev.org/doc/migration/

US%20Congress%20-%20HFRPP%20-%2015DEC11.pdf (accessed Mar. 

10, 2015). This letter highlighted the widespread support for this program, 

including local government and then DHS Secretary Napolitano. 164 International Organization for Migration, “Five Years After 2010 Earthquake, 

Thousands of Haitians Remain Displaced” (Jan. 9, 2015); http://www.iom.int/

news/five-years-after-2010-earthquake-thousands-haitians-remain-displaced

(accessed Apr. 6, 2015). 165 79 Fed. Reg. at 11814; see INA § 244(b)(1)(C).

On October 17, 2014, in an effort to further assist Haiti, 

DHS announced the HFRP program.166 The program 

was initiated to promote family reunification and enable 

Haitians to send more remittances back to foster the Haitian 

economy.167 Additionally, the program has the potential to 

save lives by providing an alternative to migrating by sea.

166 USCIS Webpage, “DHS to Implement Haitian Family Reunification Parole 

Program” (Oct. 17, 2014); http://www.uscis.gov/news/dhs-implement-haitianfamily-reunification-parole-program (accessed Apr. 6, 2015). 167 79 Fed. Reg at 75582.

Program Eligibility. The HFRP program allows eligible 

beneficiaries to process through the U.S. Consulate in PortAu-Prince, Haiti, and come to the United States as parolees 

in order to wait for an available immigrant visa. USCIS 

will assess eligibility on a case-by-case basis, evaluating 

criteria pertinent to both the petitioner and beneficiary. 

Petitioners must be U.S. citizens or Lawful Permanent 

Residents who filed a Form I-130 that was approved on 

or before December 8, 2014 and whose qualifying family 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

relationship is not as an “immediate relative.”168 An 

eligible beneficiary is a Haitian citizen residing in Haiti: 

(1) who is already the beneficiary of an approved I-130 

petition; (2) whose immigrant visa is not yet available but 

is expected to become available within the next 18 to 30 

months; and (3) whose petitioning relative in the United 

States receives a letter from the DOS National Visa Center 

(NVC) inviting them to participate in the program.169

168 See INA § 201(b)(2)(A)(i). USCIS Webpage, “The Haitian Family 

Reunification Parole (HFRP) Program” (May 7, 2015); http://www.uscis.gov/

HFRP#Eligibility for HFRP (accessed on May 7, 2015). Immediate relatives 

may seek immigrant visas to travel to the United States immediately upon the 

approval of immigrant visa petitions filed on their behalf. 169 79 Fed. Reg. at 75582. If an immigrant visa becomes available for a 

beneficiary who is not an “immediate relative” while the Form I-131 is 

pending, the beneficiary may select to complete the parole process, if desired. 

Application Process. On March 12, 2015, the NVC sent 

out the first round of invitation letters to 7,000 identified 

eligible petitioners.170 The invitation included instructions 

on how to file a completed Form I-131, Application for 

Travel Document and submit the required fee or fee waiver 

request to apply for parole under the HFRP program.171 

Recipients of the NVC invitations are being asked to 

respond within 6 months of the invitation letter to enable 

greater coordination with visa number availability.172 The 

NVC will process the petitioner’s submission and forward 

170 Information provided by USCIS (Mar. 17, 2015). 171 79 Fed. Reg. at 75582. 172 USCIS Teleconference, “USCIS Haitian Family Reunification Parole (HFRP) 

Program” (Feb. 26, 2015). 

eligible files to the U.S. Consulate in Port-Au-Prince. The 

beneficiary must present him or herself to the consulate, 

along with the required medical examination and any 

requested documentation. If determined admissible, DHS 

will parole the individual into the United States for a period 

of 3 years.173

173 USCIS Teleconference, “USCIS Haitian Family Reunification Parole (HFRP) 

Program” (Feb. 26, 2015).

Ongoing Concerns

Stakeholders have raised concerns regarding the capacity 

at the U.S. Consulate to meet the demands of eligible 

beneficiaries. DOS has stated that the U.S. Consulate in 

Port-Au-Prince has the capacity to process approximately 

5,000 beneficiaries under this program, but USCIS has 

already identified 7,000 approved I-130 petitions that meet 

the criteria for this program.174 Most I-130 petitions have 

derivative as well as primary beneficiaries, which will 

likely result in additional interviews and document review. 

The Ombudsman will closely monitor the HFRP program 

as its gets underway.

174 USCIS Teleconference, “USCIS Haitian Family Reunification Parole (HFRP) 

Program” (Feb. 26, 2015); see also 79 Fed. Reg. at 75583. 

33
34 | ANNUAL REPORT TO CONGRESS JUNE 2015

Business and Employment

U.S. immigration policy fosters economic growth, responds to 

labor market needs, and enhances U.S. global competitiveness. 

In this year’s Annual Report, the Ombudsman reviews issues 

involving temporary nonimmigrant petitions (H-2A, H-2B, 

H-1B, L-1, and O-1), investor immigrant petitions (EB-5), 

immigrant petitions, and employment authorization applications. 

The Ombudsman continues to be concerned with the quality 

and consistency of adjudications and the issuance of unduly 

burdensome Requests for Evidence.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 35

The H-2 Temporary 

Worker Programs

Responsible USCIS Office: Service Center 

Operations Directorate

While USCIS approved over 20,000 employer petitions for 

H-2 workers in FY 2014,175 the Ombudsman continued 

to receive reports of processing delays in both the H-2A 

agricultural temporary worker and H-2B nonagricultural 

temporary worker programs. Such delays can have 

severe economic consequences for petitioning U.S. 

employers, including spoilage of harvestable fruits and 

vegetables, loss of valuable livestock, and disruptions 

of scheduled events or delivery of services. From the 

employer’s perspective, the fact that three separate 

agencies govern the H-2 processes can be perplexing. 

The agencies—DOL, DOS, and USCIS—generally 

perform their individual program steps autonomously. 

Complicating matters further, in March 2015, a Florida 

federal district court ruled DOL lacks authority under the 

INA to issue regulations for the H-2B program. The court 

vacated the 2008 H-2B regulations under which DOL 

was administering the program.176 As H-2B employers 

moved to fill gaps in their spring and summer workforces, 

the court’s decision resulted in a brief shutdown of the 

H-2B program.177 While the stay was lifted 2 weeks later, 

allowing processing of labor certifications and petitions 

to move forward, the H-2B cap for the second half of 

the fiscal year was then reached on March 26, 2015.178 

On June 5, 2015, USCIS reopened the cap and began 

accepting H-2B petitions for workers with employment 

175 Information provided by USCIS (Apr. 30, 2015).

176 Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). 177 Under a subsequent court order issued March 18, 2015, DOL was permitted 

to resume temporarily processing H-2B requests for prevailing wages and 

applications for labor certification under the 2008 H-2B rule through April 

15, 2015, which was further extended by the court to May 15, 2015. Perez v. 

Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 18, 2015). 178 USCIS Webpage, “Cap Count for H-2B Nonimmigrants” (Apr. 30, 2015); 

http://www.uscis.gov/working-united-states/temporary-workers/cap-count-h2b-nonimmigrants (accessed May 19, 2015).
36 | 

start dates in the second half of the fiscal year, citing low 

visa usage, only to close it in a little over a week.179

179 USCIS Press Release, “USCIS to Reopen H-2B Cap for the Second Half of 

the Fiscal Year 2015” (Jun. 5, 2015); http://www.uscis.gov/news/alerts/uscisreopen-h-2b-cap-second-half-fiscal-year-2015 (accessed Jun. 9, 2015); USCIS 

email to stakeholders, “USCIS Reaches Cap for the Second Half of Fiscal 

Year 2015” (Jun. 15, 2015).

The Ombudsman continues to remain concerned regarding 

the administration of these programs, especially the 

coordination among the three agencies with different 

regulatory roles. To explore areas of collaboration in the 

H-2 programs, the Ombudsman convened an interagency 

working group, and continues to encourage coordination and 

more efficient practices, especially in USCIS processing. 

Background

The H-2 programs are designed to provide U.S. businesses 

with short-term agricultural (H-2A)180 and nonagricultural 

(H-2B) 181 labor when there are not sufficient U.S. workers 

who are able, willing, qualified, and available to perform the 

identified temporary work or services. H-2A occupations 

involve agricultural employment of a temporary or seasonal 

nature. H-2B jobs involve nonagricultural employment 

ranging across industries, including landscaping, 

outdoor amusement, construction, and seafood, when the 

employment is temporary based on a one-time, seasonal, 

peak load, or intermittent basis.182 There is a yearly limit of 

66,000 visas for H-2B workers, allocated in equal amounts in 

the first and second half of the year.183 There is no corollary 

yearly limit on the number of H-2A workers who may be 

admitted each year. In FY 2014, DOS issued 89,274 H-2A 

visas and 68,102 H-2B visas.184

180 INA § 101(a)(15)(H)(ii)(a); 8 C.F.R. § 214.2(h)(5). 181 INA § 101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(6). 182 8 C.F.R. § 214.2(h)(6)(ii)(B). 183 INA §§ 214(g)(1)(B) and 214(g)(10). 184 U.S. Department of State Webpage, “Table XVI(B) Nonimmigrant Visas 

Issued by Classification (Including Crewlist Visas and Border Crossing Cards) 

Fiscal Years 2010-2014;” http://travel.state.gov/content/dam/visas/Statistics/

AnnualReports/FY2014AnnualReport/FY14AnnualReport-TablXVIB.pdf

(accessed Apr. 30, 2015). The H-2B number includes beneficiaries who are 

exempt from the H-2B cap.

Generally, before filing a petition with USCIS for H-2 

workers, an employer must obtain a valid Temporary 

Employment Certification from DOL by filing Employment 

and Training Administration (ETA) Form 9142, Application 

for Temporary Employment Certification.

185 Once DOL 

issues the certification, the employer submits it to USCIS 

with Form I-129, Petition for a Nonimmigrant Worker. 

H-2 petitions may request multiple workers, so long as 

the information provided in the petition to USCIS, such 

185 20 C.F.R. § 655 Subpart A and B.

as the dates of need, job duties, and worksite locations 

matches information listed in the Temporary Employment 

Certification issued by DOL.186 USCIS examines the 

Temporary Employment Certification and confirms whether 

187 the need and the job are both temporary in nature. 

After the petition is approved by USCIS, the potential 

foreign worker applies for an H-2 nonimmigrant visa at a 

DOS consulate or embassy abroad. The foreign worker 

is interviewed by DOS to determine admissibility and 

knowledge of the work to be performed. When the visa 

is issued, the foreign worker applies for admission to the 

United States at a port of entry.

186 8 C.F.R. § 214.2(h)(2)(ii). 187 8 C.F.R. § 214.2(h)(5)(iv)(A); 8 C.F.R. § 214.2(h)(6)(ii).

Ongoing Concerns

Pursuant to the 2008 regulations under which DOL 

operated for most of the reporting period, petitioning 

employers could not begin the H-2B process with DOL 

more than 120 calendar days before their date of need.188 

For H-2A filings, petitioning employers cannot be required 

to file earlier than 45 calendar days before their date 

of need.189 While USCIS continues to prioritize H-2A 

petitions and attempts to complete these adjudications 

within a matter of days,190 H-2B filings are not prioritized. 

Petitioners may request premium processing191 of H-2B 

petitions by paying an additional $1,225192 (separate from 

the underlying filing fee of $325)193 to obtain a decision 

within 15 calendar days.194 Due to these imposed tight 

timeframes, a delay in processing at any of the involved 

agencies would likely result in less time for the next phase 

of the process and, in particular, less time for workers 

to obtain their visas and enter the United States by the 

employer’s date of need. At present, there is no crossagency system for tracking H-2 processing, starting with 

DOL through DOS visa approval. Therefore, the total H-2 

processing time remains unknown.

ANNUAL REPORT TO CONGRESS JUNE 2015

188 20 C.F.R. § 655.15(b) (2009). During most of this reporting period, DOL 

operated the H-2B program under regulations promulgated in 2008. The 

Department was subsequently subject to litigation that resulted in an 

injunction of those regulations. Perez v. Perez, No. 3:14-cv-682 (N.D. 

Florida, Mar. 4, 2015). 189 See INA § 218(c)(1); see also 20 C.F.R. § 655.130(b). 190 USCIS Adjudicator’s Field Manual (AFM) Ch. 31.4(c). 191 See USCIS Webpage, “How Do I Use the Premium Processing Service?” 

(May 19, 2015); www.uscis.gov/forms/how-do-i-use-premium-processingservice (accessed May 19, 2015). 192 See USCIS Webpage, “I-907, Request for Premium Processing Service” (May 

1, 2015); www.uscis.gov/i-907 (accessed May 19, 2015). 193 See USCIS Webpage, “H and L Filing Fees for Form I-129, Petition for a 

Nonimmigrant Worker” (Jun. 7, 2013); www.uscis.gov/forms/h-and-l-filingfees-form-i-129-petition-nonimmigrant-worker (accessed Apr. 30, 2015). 194 USCIS Webpage, “How Do I Use the Premium Processing Service?” (May 

19, 2015); http://www.uscis.gov/forms/how-do-i-use-premium-processingservice (accessed May 19, 2015).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

Paper-Based Process. In 2012, DOL implemented the 

electronic filing of temporary labor applications in the 

H-2 programs through its iCERT Visa Portal System.195 

Conversely, development of USCIS’ online H-2 petition 

has been delayed, although the agency continues to plan 

to deploy it as part of its Transformation program.196 

DOL also provides employers with notification and 

correspondence via email. As noted above, USCIS 

provides H-2B petitioners the option of requesting 

Premium Processing,197 a service that includes expedited 

processing of cases, and also delivers receipting and other 

correspondence from the agency via email and by hard 

copy. Premium Processing is not available, however, to 

H-2A employers.198

195 “Electronic Filing of H-2A and H-2B Labor Certification Applications 

Through the iCERT Visa Portal System,” 77 Fed. Reg. 59670 (Sept. 

28, 2012). 196 Transformation seeks to move the agency from a paper-based application and 

adjudication process to an electronic one; see USCIS Webpage, “Office of 

Transformation Coordination” (Oct. 1, 2012); http://www.uscis.gov/about-us/

directorates-and-program-offices/office-transformation-coordination (accessed 

Mar. 11, 2015). See infra section “Transformation: Modernizing Systems, 

Case Processing, and Customer Service” of this Report. 197 See USCIS Webpage, “How Do I Use the Premium Processing Service?” 

(May 19, 2015); www.uscis.gov/forms/how-do-i-use-premium-processingservice (accessed May 19, 2015). 198 Id.

For certain notifications and correspondence, USCIS 

allows applicants or petitioners who may be interested in 

faster delivery to include pre-paid courier service mailer 

envelopes along with their initial filing.199 Otherwise, 

USCIS sends correspondence through regular mail via 

USPS. The Ombudsman continued to receive complaints 

regarding USCIS’ failure to use the provided pre-paid 

envelopes. Specifically, it has been noted that USCIS’ 

Vermont Service Center (VSC) was no longer accepting 

pre-paid Federal Express envelopes. At the Ombudsman’s 

2014 Annual Conference, USCIS explained the temporary 

shift in policy was due to the fact that several employers 

were negligent in paying their Federal Express account 

fees, and the agency, as the other party in the transaction, 

was being held responsible. USCIS has since returned to 

using pre-paid envelopes when provided.

199 See USCIS Webpage, “USCIS Service and Office Locator;” https://egov.uscis.

gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=SC (accessed 

Mar. 11, 2015). Items that may be sent via courier service include: approval 

notices (Form I-797), requests for evidence, notices of denial and/or intent to 

deny, and most travel documents.

Delays Due to Requests for Evidence. Both in 2014200

and in this most recent reporting period, stakeholders 

were delayed in obtaining H-2 workers due to higher 

scrutiny and issuance of RFEs by USCIS. In some cases, 

200 Ombudsman’s Annual Report 2014, p. 26.

issuance of such RFEs resulted in delays of an additional 

2 to 3 weeks caused by the agency’s use of USPS regular 

mail delivery service. For example, one employer agent 

who submitted a request for case assistance with the 

Ombudsman filed an H-2A petition on behalf of the 

employer on October 31, 2014 with a November 15, 2014 

start date requested. USCIS issued an RFE on November 

19, 2014. USCIS did not utilize the return next day courier 

envelope provided and instead sent the request by regular 

USPS mail. The agent did not receive the notice until 

December 1, 2014. Furthermore, the agent was confused 

by the duplicative nature of the RFE, as the documents 

requested were submitted with the initial petition. The 

employer immediately submitted a duplicate copy of 

the documents to USCIS using overnight mail. The 

Ombudsman contacted USCIS, and assisted in having the 

agency review and adjudicate the H-2A petition within a 

day of the communication. 

A shift to electronic processing, whether via online 

submission and/or email communication options, would 

result in faster processing, reduced costs, enhanced 

customer service, and better data collection.

Communication between the three agencies regarding 

approvals of H-2 petitions is also generally conducted 

on paper. Although each agency has a level of electronic 

37
38 | 

access, DOL, DOS, and USCIS do not currently 

communicate their decisions to one another electronically. 

This introduces an additional layer of complexity that 

burdens the petitioning employer. For example, rather than 

DOL electronically sending USCIS an approved Temporary 

Employment Certification, petitioning employers are 

required to provide USCIS the signed original hard copy 

document.201 USCIS also does not forward its approved 

H-2 petitions to DOS electronically. Instead, DOS’s 

Kentucky Consular Center receives paper files from USCIS 

and scans and uploads the approved petition and supporting 

documentation into the DOS electronic system for access 

by embassies and consulates abroad.202 According to DOS, 

this process takes approximately 3 days.203

201 8 C.F.R. § 214.2(h)(5)(i)(A). 202 The Kentucky Consular Center is a DOS facility located in Williamsburg, 

Kentucky. It supports the worldwide operations of the Bureau of Consular 

Affair’s Visa Office. It uploads petition information into the DOS Petition 

Information Management System. 203 Ombudsman Teleconference, “H-1B and H-2B Filing Season,” 

(Feb. 19, 2015).

Failure to Recognize Agents. Although permitted under 

the regulations,204 USCIS currently does not capture in the 

agency’s electronic case management systems information 

concerning an agent or petition preparer filing on behalf of 

a petitioning employer; USCIS only captures information 

regarding the employer. This is in contrast to the agency’s 

process of electronically capturing information regarding 

the attorney and/or accredited representative of record. It 

also results in USCIS not consistently issuing notices 

or correspondence to agents who represent petitioning 

employers in the H-2 process, possibly further contributing to 

delays. Unlike attorneys or accredited representatives, who 

file Form G-28, Notice of Entry of Appearance as Attorney or 

Accredited Representative requiring USCIS to communicate 

with them on behalf of the applicant/petitioner, agents have 

no such corresponding form. Stakeholders report USCIS 

often sends notices and correspondence directly to petitioning 

employers, notwithstanding the fact their petitions were filed 

through an agent as permitted by USCIS regulations.

204 See, e.g., 8 C.F.R. § 214.2(h)(i)(5)(A); 8 C.F.R. § 214.2(i)(F); 8 C.F.R. §§ 

214.2(h)(6)(iii)(B) and 214.2(o)(2)(iv)(E).

H-2B Program Litigation. On March 4, 2015, the federal 

district court in the Northern District of Florida vacated 

DOL’s 2008 H-2B regulations on the ground the agency 

lacked authority under the INA to issue regulations in 

the H-2B program.205 These regulations established the 

standards and procedures for certifying an employer’s 

205 Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). The same court 

had also enjoined DOL’s final rule published in 2012 on the same grounds 

of lack of regulatory authority. Bayou Lawn and Landscape Services, Inc. 

v. Solis, 3:12-cv-183-MCR-CJK (N.D. Florida, Apr. 26, 2012); aff’d Bayou 

Lawn and Landscape Services, Inc. v. Oates, 713 F.3d 1080 (11th Cir. 2013).

request to petition for H-2B workers and determine 

prevailing wage rates. Responding to this decision, DOL 

immediately stopped accepting and processing requests 

for prevailing wage determinations and applications 

for Temporary Employment Certification in the H-2B 

program.206 Thereafter, on March 5, 2015, USCIS also 

temporarily suspended adjudication of affected H-2B 

petitions.207 Due to the impact the court’s order had on 

petitioning employers, the court subsequently delayed its 

implementation at least twice, permitting the agencies to 

temporarily resume processing of H-2Bs. The lifting of the 

stay was predicated in part on DHS’s and DOL’s agreement 

to publish a new rule that would allow the H-2B program to 

continue without further interruption. Accordingly, USCIS 

and DOL each resumed processing in mid-March 2015.208 

On April 29, 2015, DOL and USCIS jointly published 

an interim final rule governing the H-2B program, along 

with a corresponding final rule to establish the prevailing 

wage methodology.209 The new regulations became 

effective immediately upon publication. The rules include 

several provisions to expand recruitment of U.S. workers; 

strengthen worker protections; and continue the use of 

employer-provided surveys to establish a prevailing wage in 

certain limited situations.210

206 See Office of Foreign Labor Certification Website, “Announcements” Mar. 4, 

2015; http://www.foreignlaborcert.doleta.gov/ (accessed Mar. 11, 2015). 207 USCIS email to stakeholders, “USCIS Temporarily Suspends Adjudication of 

H-2B Petitions Following Court Order,” Mar. 9, 2015. 208 See USCIS Webpage, “USCIS Resumes H-2B Adjudications; Premium 

Processing Remains Suspended” (Mar. 17, 2015); http://www.uscis.gov/news/

uscis-resumes-h-2b-adjudications-premium-processing-remains-suspended

(accessed Mar. 18, 2015); Office of Foreign Labor Certification Website, 

“‘Announcements,’ ‘Prohibition of DOL H-2B Processing Temporarily 

Lifted;’” http://www.foreignlaborcert.doleta.gov/ (accessed May 19, 2015). 209 “Wage Methodology for the Temporary Non-Agricultural H-2B Program; 

Final Rule,” 80 Fed. Reg. 24041 (Apr. 29, 2015); “Temporary NonAgricultural Employment of H-2B Aliens in the United States; Interim Final 

Rule,” 80 Fed. Reg. 24145 (Apr. 29, 2015). 210 See USCIS Webpage, “New Rules for the H-2B visa program announced by 

the U.S. Departments of Labor and Homeland Security;” http://www.uscis.

gov/alerts-topics/visas-h-2a-and-h-2b (accessed Apr. 30, 2015).

H-2 Interagency Working Group. To explore 

improvements in the H-2 process, in May 2014, the 

Ombudsman convened an interagency working group that 

includes DOL, DOS, and USCIS. The interagency working 

group has met several times over the last year and discussed 

a variety of topics affecting the H-2 programs, including: 

information sharing between agencies, mailing issues 

and alternatives to use of regular mail, and creation of a 

designated agent form. The Ombudsman also discussed H-2 

processing issues at the office’s 2014 Annual Conference on 

a panel with speakers from USCIS and employers.211 The 

Ombudsman remains committed to working with USCIS, 

211 Ombudsman 2014 Annual Conference (Nov. 6, 2014).

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

other government offices, and H-2 stakeholders to address 

issues affecting the H-2 programs.

High-Skilled 

Adjudication Issues

Responsible USCIS Offices: Service Center 

Operations Directorate and Office of Policy 

and Strategy

As discussed in Annual Reports since 2008, stakeholders 

continue to raise concerns with USCIS adjudication of 

nonimmigrant petitions for high-skilled beneficiaries, 

including H-1B (Specialty Occupations), L-1A 

(Intracompany Transferee Managers or Executives), L-1B 

(Specialized Knowledge Workers), and O-1 (Individuals 

with Extraordinary Ability or Achievement). Specifically, 

employers and their representatives provide examples to the 

Ombudsman of RFEs that appear to be redundant, seeking 

documentation that was previously provided; unnecessary, 

requesting information that is irrelevant or exceeds 

what is needed to complete the adjudication; and unduly 

burdensome in scope or intrusiveness. Notably, on March 

23, 2015, USCIS issued the long-awaited L-1B Policy 

Guidance Memorandum in draft form with a scheduled 

implementation date of August 31, 2015.212

212 USCIS Policy Memorandum (PM-602-0111), “L-1B Adjudications Policy” 

(Mar. 24, 2015); http://www.uscis.gov/sites/default/files/USCIS/Outreach/

Draft%20Memorandum%20for%20Comment/2015-0324-Draft-L-1B-Memo.

pdf (accessed May 18, 2015). 

Background

Start-up firms, U.S. and international companies, and 

academic institutions use high-skilled visa programs 

to hire or transfer foreign employees to work in U.S. 

offices. Despite elevated RFE rates discussed below, in 

FY 2014 USCIS approved 96.5 percent of H-1B petitions 

it adjudicated, 80.3 percent of L-1A petitions, and 70.9 

percent of L-1B petitions.213

213 Information provided by USCIS (Apr. 30, 2015).

The regulations describe when an RFE may be used, and 

what it must contain:

If all required initial evidence is not submitted ... 

USCIS in its discretion may deny the [application 

or petition] for lack of initial evidence or for 

ineligibility or request that the missing initial 

evidence be submitted ....

(iii) ... [i]f all required initial evidence has been 

submitted but the evidence submitted does not 

establish eligibility, USCIS may: ... request 

more information or evidence from the applicant 

or petitioner .... 

(iv) ... A request for evidence ... will specify the 

type of evidence required ... sufficient to give 

the applicant or petitioner adequate notice and 

sufficient information to respond ....214

214 8 C.F.R. § 103.2(b)(8)(ii–iv).

Additionally, a USCIS Adjudicator’s Field Manual (AFM) 

section is dedicated to RFEs,215 and USCIS has issued 

numerous guidance memoranda to adjudicators on this 

matter since 2004.216 The most recent, issued on June 

3, 2013, instructs adjudicators that “an RFE is not to be 

issued when the evidence already submitted establishes 

eligibility or ineligibility in all respects for the particular 

benefit or service. An unnecessary RFE can delay case 

completion and result in additional unnecessary costs to 

both the government and the individual ....”217 Other 

agency efforts to address stakeholder concerns with the 

quality and consistency of adjudications include the RFE 

Template Project initiated in 2010,218 and the Entrepreneurs 

in Residence program initiated in 2013.219

215 AFM Ch. 10.5(a). 216 See Interoffice Memorandum, “Removal of the Standardized Request for 

Evidence Processing Timeframe Final Rule, 8 C.F.R. § 103.2(b)” (Jun. 1, 

2007); http://www.uscis.gov/sites/default/files/USCIS/Laws%20and%20

Regulations/Memoranda/June%202007/RFEFinalRule060107.pdf (accessed 

May. 19, 2010); and USCIS Memorandum, “Requests for Evidence (RFE) 

and Notices of Intent to Deny (NOID)” (Feb. 16, 2005); http://www.uscis.

gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/

Archives%201998-2008/2005/rfe021605.pdf (accessed May. 19, 2010). The 

May 4, 2004 Interoffice Memorandum, “Requests for Evidence” is rescinded. 217 USCIS Policy Memorandum, “Requests for Evidence and Notices of Intent 

to Deny” (Jun. 3, 2013); http://www.uscis.gov/sites/default/files/USCIS/

Laws/Memoranda/2013/June%202013/Requests%20for%20Evidence%20

%28Final%29.pdf (accessed Jun. 2, 2014). The USCIS Policy Memorandum 

was issued in response the U.S. Department of Homeland Security Office 

of Inspector General (OIG) Report, “The Effect of USCIS Adjudication 

Procedures and Policies on Fraud Detection by Immigration Services 

Officers” (Jan. 5, 2012); http://www.oig.dhs.gov/assets/Mgmt/OIG_12-24_

Jan12.pdf (accessed May 19, 2015). 218 USCIS Webpage, “Review and Revision of Request for Evidence Templates” 

(Jan. 6, 2015); http://www.uscis.gov/outreach/feedback-opportunities/reviewand-revision-request-evidence-templates (accessed May 19, 2015). 219 See generally USCIS Webpage, “Entrepreneurs in Residence (EIR)” (Feb. 

19, 2014); www.uscis.gov/about-us/entrepreneurs-residence-initiative/

entrepreneurs-residence-eir (accessed May 18, 2015). See also USCIS 

Webpage, “Executives in Residence” (Apr. 22, 2014); www.uscis.gov/aboutus/uscis-residence-programs/executives-residence (accessed May 19, 2015).

Notwithstanding these legal authorities, policy memoranda, 

and agency initiatives, RFE rates in the H-1B and L-1 

categories at both the California Service Center (CSC) and 

VSC remain at or near historic highs.220 See Figure 3.1, 

H-1B, L-1A, L-1B RFE Rates.

220 Information provided by USCIS (Apr. 30, 2015). 

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CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

To address these concerns, the Ombudsman made four 

formal recommendations221 to USCIS in 2010:

221 Ombudsman’s Annual Report 2010, p. 48. 

M Implement new and expanded training to ensure that 

adjudicators understand and apply the “preponderance of 

the evidence” standard in adjudications;

M Require adjudicators to specify the facts, circumstances 

and/or derogatory information necessitating the issuance 

of an RFE; 

M Establish clear adjudicatory L-1B guidelines through 

the structured notice and comment process of the 

Administrative Procedure Act; and

M Implement a pilot program requiring (1) 100 percent 

supervisory RFE review of one or more product 

lines, and (2) require an internal uniform checklist for 

adjudicators to complete prior to issuance of an RFE.

USCIS accepted the recommendation to develop new 

training materials for adjudicators on the preponderance 

of the evidence legal standard, and the agency began using 

these training materials in 2012.222 The Ombudsman 

reviewed the training materials, and while they improve 

upon prior treatment of this subject, instructing adjudicators 

to carefully evaluate the evidence proffered to determine 

whether it is credible, probative, and relevant, they 

nevertheless could be made more useful. Specifically, as 

the Ombudsman noted in 2010,223 preponderance of the 

evidence trainings should include actual examples from 

petitions, appropriately redacted. Examples of cases 

that are clearly approvable, clearly deniable, and those 

warranting the issuance of an RFE should be presented and 

discussed, and can be used to train adjudicators to identify 

any missing elements needed to complete the adjudication. 

Doing so would lead to more narrowly crafted RFEs, 

rather than ones that cite comprehensive descriptions of 

the law and regulations, and lists of possible documents 

that could serve as evidence. A training program on the 

preponderance of the evidence standard using detailed 

real-world case examples for each product line would better 

assist USCIS adjudicators to determine whether cases are 

approvable or deniable upon first review, resulting in the 

issuance of fewer, and more narrowly tailored RFEs. 

222 See USCIS Webpage “USCIS and American Immigration Lawyers 

Association (AILA) Meeting” (May 29, 2012); http://www.uscis.gov/

outreach/notes-previous-engagements/notes-previous-engagements-topic/

policy-and-guidance/uscis-and-american-immigration-lawyers-associationaila-meeting (accessed May 18, 2015). 223 Ombudsman’s Annual Report 2010, p. 47.

The Ombudsman also continues to urge the agency to pilot 

an initiative requiring 100 percent supervisory review before 

an RFE is issued.224 The agency could select the L-1B 

product line for such a pilot, as the annual volume of such 

filings is relatively small and implementation of new policy 

guidance warrants a qualitative review.225 Although the pilot 

may cause a temporary increase in processing times, it will 

enhance a culture in which adjudicators carefully consider 

whether an RFE is needed before seeking supervisory 

review. Ultimately, this will help reduce the number of RFEs 

that are issued, and in the end, shorten processing times. 

224 USCIS may find it useful to conduct concurrent pilots at both the California 

and the Vermont Service Centers to not only provide parity to petitioners 

without regard to the service center at which they file, but also to better enable 

the agency to assess and compare the results of the pilot. 225 The agency received 325,276 H-1B petitions, and 14,684 L-1B petitions in FY 

2014. Information provided by USCIS (Apr. 30, 2015).

Ongoing Issues

H-1B Specialty Occupation Workers: Issues with 

Decisions Based on the DOL’s Occupational Outlook 

Handbook. USCIS adjudicators use a variety of 

resources when evaluating whether the particular position 

offered to the foreign worker qualifies as a “specialty 

occupation.”226 Among the resources used and cited 

frequently by adjudicators is the DOL Bureau of Labor 

Statistics publication titled the Occupational Outlook 

Handbook (OOH).227

226 INA § 214(i)(1). 227 See generally Bureau of Labor Statistics, U.S. Department of Labor, 

“Occupational Outlook Handbook, 2014-15 Edition;” http://www.bls.gov/ooh/

(accessed May 19, 2015).

During this reporting period and in past years, stakeholders 

have presented the Ombudsman with H-1B decisions in 

which USCIS appears to misread or misapply the OOH. 

Denial decisions that conclude that a given position 

is not a “specialty occupation” when the OOH states 

that most employers hire employees with a bachelor’s 

degree in specific field of study, but some require only 

an associate’s degree.

In one case,228 USCIS quoted the OOH passage below, and 

issued a denial concluding that a “Computer Programmer” 

is not a specialty occupation: 

228 Information provided through a request for case assistance.

Most computer programmers have a bachelor’s 

degree; however, some employers hire workers who 

have an associate’s degree. Most programmers get 

a degree in computer science or a related subject. 

41
42 | 

Programmers who work in specific field, such 

as healthcare or accounting, may take classes in 

that field to supplement their degree in computer 

programming .... 

As stated in the OOH, some employers will hire 

workers with an associate degree for Computer 

Programmer positions. Thus, a bachelor’s degree 

in a specific specialty is not normally the minimum 

requirement for entry in the Computer Programmer 

position.” (Emphasis added.)

The conclusion that a bachelor’s degree in a specific 

specialty is not normally the minimum requirement for 

entry in the computer programmer position is inconsistent 

with a plain English interpretation of the OOH’s degree 

acknowledgment. The OOH states that “most computer 

programmers have a bachelor’s degree,” so it follows 

that possession of such a degree is the recognized normal

entry-level requirement to fill the position of computer 

programmer. To read the passage otherwise would allow 

exceptions to undermine the general rule. 

The DOL is clear on the eligibility of computer 

programmer to qualify as a specialty occupation. Its 

website states that “the INA allows employment of 

alien workers in certain specialty occupations (generally 

those requiring a bachelor’s degree or its equivalent). 

Foreign workers such as engineers, teachers, computer 

programmers, medical doctors, and physical therapists 

may be employed under the H-1B, H-1B1, and E-3 visa 

classification” (emphasis added).229 Moreover, in USCIS’ 

February 26, 2015 Annual Report to Congress on the 

“Characteristics of H-1B Specialty Occupation Workers,” 

the agency itself states, “Specialty occupations may 

include, but are not limited to, computer systems analysts 

and programmers, physicians, professors, engineers, and 

accountants” (emphasis added).230 Nevertheless, over the 

past several years, the Ombudsman has reviewed a number 

of denials that relied on a contrary reading based on this 

unintended use of the OOH. 

229 See DOL Webpage, “elaws Employment Law Guide—Work Authorization 

for non-U.S. Citizens: Workers in Professional and Specialty Occupations 

(H-1B, H-1B1, and E-3 Visas)” (Sept. 2009); www.dol.gov/elaws/elg/h1b.htm

(accessed May 19, 2015). 230 USCIS Fiscal Year 2014 Annual Report to Congress, “Characteristics of H-1B 

Specialty Occupation Workers,” p. 2 (Feb. 26, 2015); http://www.uscis.gov/

sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/h-1Bcharacteristics-report-14.pdf (accessed May 19, 2015).

Denial decisions that conclude that a given position is 

not a “specialty occupation” based on the OOH, which 

states that multiple bachelor’s degrees may qualify an 

individual to fill the position, and therefore a generic 

bachelor’s degree would suffice.

In another case, a 2015 federal district court reversed 

USCIS’ conclusion that a “Market Research Analyst” 

position is not a “specialty occupation.”231 In its decision, 

the court cited the OOH: 

231 See Raj and Company v. USCIS, Case No. C14-123RSM (W.D. Wash. Jan. 14, 

2015); http://hr.cch.com/ELD/RajUSCIS.pdf (accessed May 19, 2015).

Market research analysts typically need a 

bachelor’s degree in market research or a related 

field. Many have degrees in fields such as 

statistics, math, or computer science. Others have 

a background in business administration, one of 

the social sciences, or communications. Courses 

in statistics, research methods, and marketing 

are essential for these workers; courses in 

communications and social sciences—such 

as economics, psychology, and sociology—are 

also important.

Many market research analyst jobs require a master’s 

degree. Several schools offer graduate programs 

in marketing research, but many analysts complete 

degrees in other fields, such as statistics, marketing or 

a Masters of Business Administration (MBA) ....

And continued, stating:

Based on this description, USCIS determined that 

“although a baccalaureate level training is typical, 

the position of Market Research Analyst[s] [sic] is 

an occupation that does not require a baccalaureate 

level education in a specific specialty as a normal, 

minimum for entry into the occupation.” This 

interpretation of the evidence cannot be sustained. 

[USCIS’ ] approach impermissibly narrows the 

plain language of the statute. The first regulatory 

criterion does not restrict qualifying occupations 

to those for which there exists a single, specifically 

tailored and titled degree program. Indeed, 

such an interpretation ignores the statutory 

and regulatory allowance for occupations that 

requires the attainment of the “equivalent” of a 

specialized bachelor’s degree as a threshold for 

entry. By including this language, Congress and 

the INA recognized that the needs of a “specialty 

occupation” can be met even where a specifically 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

tailored baccalaureate program is not typically 

available for a given field ....232

232 See Raj and Company v. USCIS, Case No. C14-123RSM (W.D. Wash. Jan. 14, 

2015), p. 8; http://hr.cch.com/ELD/RajUSCIS.pdf (accessed May 19, 2015). 

In sustaining the petitioner’s appeal, the court agreed that a 

generalized requirement that individuals in certain positions 

must have a bachelor’s degree is an insufficient basis to 

find that such position constitutes a “specialty occupation.” 

However, the court also held that the agency may not refuse 

to find a position to constitute a “specialty occupation” 

merely because more than one type of bachelor’s degree 

program will satisfy the requirement. Stakeholders have 

presented the Ombudsman with RFEs and denial decisions 

in other occupations that rely inappropriately on similar 

statements found in the OOH. 

H-1B Precedent Decision: Matter of Simeio Solutions, 

LLC. On April 9, 2015, USCIS’ Administrative Appeals 

Office (AAO)233 issued a rare precedent decision addressing 

when a reassignment of an H-1B worker requires the 

petitioning employer to file an amended H-1B petition 

that is supported by a DOL certified Labor Condition 

Application (Form ETA-9035).234 As a precedent 

decision—one of only four issued in the last 3 years235—the 

holding in Simeio is binding on all USCIS H-1B petitioning 

employers nationwide.236 

233 Petitioners and applicants for certain categories of immigration benefits 

may appeal a negative decision to the agency’s AAO, which conducts 

administrative review of those appeals to ensure consistency and accuracy 

in the interpretation of immigration law and policy. 8 C.F.R. § 103.3. 

See USCIS Webpage, “Administrative Appeals Office (AAO)” (May 12, 

2014); http://www.uscis.gov/about-us/directorates-and-program-offices/

administrative-appeals-office-aao/administrative-appeals-office-aao (accessed 

May 19, 2015). 234 26 I&N Dec. 542. (AAO Apr. 9, 2015). 235 USCIS has issued only six precedent or adopted decisions since 2010. See U.S. 

Department of Justice Webpage, “DHS/AAO/INS Decisions” (Apr. 23, 2015); 

http://www.justice.gov/eoir/dhs-aao-ins-decisions (accessed May 19, 2015). 236 See generally 8 C.F.R. § 103.3(c). 

Since the Simeio decision was issued without 

accompanying guidance, the Ombudsman hosted a 

national teleconference on April 30, 2015, to seek 

stakeholder feedback and identify outstanding issues. 

Over 650 external stakeholders and government officials 

participated on the call. Of utmost importance to the 

affected stakeholder community was how the decision 

would be applied to H-1B employees who were previously 

reassigned with no amended filing based on prior 

practice.237 On May 21, 2015, USCIS addressed some 

of these questions through its issuance of draft guidance, 

237 Letter from Efren Hernandez III, Director, Business and Trade Branch, to 

Lynn Shotwell, American Council on International Personnel, Inc. (Oct. 

23, 2003).

which established a 90-day timeframe for employers to 

submit amended filings.238

238 USCIS Webpage, “USCIS Guidance on When to File an Amended H-1B 

Petition After the Simeio Solutions Decision,” http://www.uscis.gov/news/

alerts/uscis-guidance-when-file-amended-h-1b-petition-after-simeio-solutionsdecision (accessed May 22, 2015). 

The Ombudsman notes that the Simeio case had been 

pending before AAO for nearly 4 years, and that this new 

agency interpretation was made without first providing the 

affected stakeholder community an opportunity to provide 

its input.239 Some large employers have informed the 

Ombudsman that the decision could cost them millions in 

additional legal fees and filing costs.240

239 Notes from Ombudsman’s Monthly Teleconference (Apr. 30, 2015). 240 The AAO has requested amicus curiae briefing in two other cases. On April 

7, 2015, in connection with the agency’s review of its long-held position that 

the beneficiary of an approved employment-based petition is not an “affected 

party” with legal standing in the proceeding, the AAO posted a Request for 

Amicus Brief “to allow concerned stakeholders the opportunity to provide 

input regarding a complex or unusual issue in a particular case or group of 

cases.” USCIS Webpage, “USCIS Administrative Appeals Office: Request 

for Amicus Curiae Briefs;” http://www.uscis.gov/sites/default/files/USCIS/

About%20Us/Directorates%20and%20Program%20Offices/AAO/3-27-15-

AAOamicus.pdf (accessed May 19, 2015). Similarly, on August 18, 2011, 

USCIS posted a “Request for Amicus Brief” in connection with its response 

to the U.S. Court of Appeals for the Ninth Circuit’s decision in Kazarian v. 

USCIS, 596 F.3d 1115 (9th Cir. 2010); http://www.uscis.gov/sites/default/files/

USCIS/Outreach/Feedback%20Opportunities/Amicus%20Briefs/Amicus_

Brief_Request_081611%20v2.pdf (accessed May 19, 2015). 

L-1A Intracompany Transferees. The Ombudsman 

received few requests for case assistance related to 

the L-1A program during the 2015 reporting period. 

Stakeholder concerns have focused on “new office” filings, 

particularly those seeking extensions, where the petitioner 

discloses that, at times, the beneficiary engages in some 

hands-on activities. 

The L-1 nonimmigrant classification facilitates the 

temporary transfer of qualified executives, managers and 

specialized knowledge workers from the overseas offices 

of a multinational company to an affiliated company doing 

business in the United States.241 USCIS regulations permit 

an L-1 beneficiary to enter the United States to establish 

a “new” office, but limits the period of stay to 1 year.242 

Pursuant to the AFM:

241 See generally INA § 101(a)(15)(L). 242 8 C.F.R. § 214.2(l)(1)(ii)(F).

The L beneficiary who is coming to the United 

States to open a new office may be classified as a 

manager or executive during the one year required 

to reach the “doing business” standard if the factors 

surrounding the establishment of the proposed 

organization are such that it can be expected that 

the organization will, within one year, support 

43
44 | 

a managerial or executive position. The factors 

to be considered include amount of investment, 

intended personnel structure, product or service to 

be provided, physical premises, and viability of the 

foreign operation. It is expected that a manager or 

executive who is required to open a new business 

or office will be more actively involved in dayto-day operations during the initial phases of the 

business, but must also have authority and plans 

to hire staff and have wide latitude in making 

decisions about the goals and management of 

the organization.243

243 AFM Ch. 32.6 (e).

Petitioners have provided the Ombudsman with examples 

of RFEs and denials in “new” office L-1A extension cases. 

In reviewing these extension filings, it is appropriate that 

adjudicators examine whether the petitioner is actually 

“doing business,”244 to ascertain the specific job duties that 

will be performed by the beneficiary under the extended 

petition, and to consider the “staffing of the new operation, 

including the number of employees and types of positions 

held ....”245 Yet, in some instances, it appears that 

adjudicators are placing undue emphasis on whether the 

beneficiary is too closely connected to the actual production 

work or services offered by the petitioning entity. 

244 Doing business means the regular, systematic, and continuous provisions 

of goods and/or services by a qualifying organization and does not include 

the mere presence of an agent or office or the qualifying organization in the 

United States and abroad. 8 C.F.R. 214.2(l)(1)(ii)(H). 245 See generally 8 C.F.R. § 214.2(l)(14)(ii).

Many of these denials cite to Matter of Church of 

Scientology,246 a 1988 Commissioner decision, for the 

proposition that “an employee who primarily performs 

the tasks necessary to produce a product or to provide 

services is not considered to be employed in a managerial 

or executive capacity.”247 While Matter of Church of 

Scientology is instructive, the critical inquiry is not whether 

the beneficiary sometimes gets involved in operations, 

but rather, whether the beneficiary is “primarily” engaged 

in tasks necessary to produce the products or provide 

service.248 In a common sense application, this means 

a majority of the beneficiary’s working time. The AFM 

ratifies this interpretation, stating: 

246 19 I&N Dec. 593, 604. 247 See AFM Ch. 32.6(d). 248 19 I&N Dec. 593, 604.

Eligibility requires that the duties of the position 

be primarily of an executive or managerial 

nature .... The test is basic to ensure that a person 

not only has the requisite authority, but that a 

majority of his or her duties relate to operation 

or policy management, not to the supervision

of nonprofessional employees, performance of 

the duties of another type of position, or other 

involvement in the operational activities of the

company. This does not mean that the executive 

or manager cannot regularly apply his or her 

technical or professional expertise to a particular 

problem. Certain positions necessarily require a 

manager or executive’s application of his technical 

or professional expertise; adjudicators should 

therefore focus on the primary duties of the 

beneficiary.249 (Emphasis added.) 

249 AFM Ch. 32.6(d).

Thus, under the INA and AFM, L-1A managers and 

executives are in fact permitted to engage in some hands-on 

activities, provided these activities are secondary to their 

principal and essential duties.

Another area of focus in L-1A adjudications is on the 

petitioning entity’s organizational structure, i.e., the number 

of layers of management between the L-1A beneficiary and 

line workers. Increasingly, and especially in the context of 

start-up or international enterprises opening new offices in 

the United States, businesses are adopting less traditional, 

more flat management and reporting structures. Today, 

many L-1A executives and managers are being asked to 

manage facilities and lead workforces dispersed globally, 

and to do so with fewer intermediate layers of management. 

The Ombudsman urges USCIS to consider whether it 

would be helpful to update applicable regulations and 

guidance to assist adjudicators who are asked daily to 

review petitions that present this new business paradigm. 

L-1B Specialized Knowledge Workers. For several years 

the Ombudsman has been urging USCIS to issue new 

regulations to replace existing regulations, AFM sections, 

policy memoranda, and non-precedent AAO decisions 

interpreting “specialized knowledge.”250 The original 

recommendation was made in the Ombudsman’s 2010 

Annual Report, along with an analysis of L-1B RFE 

rates.251 USCIS did not concur with this recommendation, 

indicating instead that it planned to issue new, superseding 

policy guidance. 

250 Ombudsman’s Annual Reports 2010, p. 48; 2011, p. 29; 2013, p. 32; 2014, p. 

24. 251 Ombudsman’s Annual Report 2010, p. 40. 

While stakeholders awaited the new guidance, L-1B RFE 

rates continued to climb, with RFEs issued in nearly one 

out of every two petitions filed in FY 2014, and denial 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

rates reaching 35 percent.252 According to one recently 

published report, USCIS’ denial rate in “extension” cases 

(i.e., for “specialized knowledge” workers already holding 

this nonimmigrant status in the United States) was higher 

(41 percent) than the denial rate for initial L-1B filings 

(32 percent).253 The implications of these numbers, and 

others cited in the report, are troubling; almost all extension 

beneficiaries were interviewed by a Department of State 

consular officer before obtaining their L-1B visas, and in 

many cases, USCIS had reviewed and approved a prior 

petition filed by the employer for the same beneficiary. 

The extension denial rates confirm stakeholder concerns 

regarding the quality and consistency of L-1B adjudications.

252 Information provided by USCIS (Apr. 30, 2015). 253 National Foundation for American Policy, “L-1B Denial Rates Increases 

Again for High Skill Foreign Nationals” (Mar. 2015); http://nfap.com/wpcontent/uploads/2015/03/NFAP-Policy-Brief.L-1-Denial-Rates-IncreaseAgain.March-20151.pdf (accessed May 12, 2015). In addition, this report 

disclosed an aggregate L-1B denial rate for beneficiaries of Indian origin of 

56 percent in the 5-year period of 2012 through 2014. The denial rate is 13 

percent for nationals of all other countries in this same time period. 

On November 20, 2014, as a part of executive action on 

immigration, the White House called on USCIS to “... 

clarify its guidance on temporary L-1 visas for foreign 

workers who transfer from a company’s foreign office to 

its U.S. office.”254 On March 24, 2015, USCIS posted for 

a 45-day comment period its new draft L-1B Adjudications 

Policy Memorandum.255 In releasing the draft L-1B 

guidance for public comment, USCIS Director León 

Rodriguez stated:

254 The White House, Office of the Press Secretary Webpage, “Fact Sheet: 

Immigration Accountability Executive Action” (Nov. 20, 2014); https://

www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigrationaccountability-executive-action (accessed May 19, 2015). 255 USCIS Policy Memorandum (PM-602-0111), “L-1B Adjudications Policy” 

(Mar. 24, 2015); http://www.uscis.gov/sites/default/files/USCIS/Outreach/

Draft%20Memorandum%20for%20Comment/2015-0324-Draft-L-1B-Memo.

pdf (accessed May 18, 2015). 

This policy memorandum, when it goes into effect, 

will help companies in the United States better 

use the skills of talented employees in the global 

marketplace ..., maintain the integrity of the L-1B 

program, while recognizing the fluid dynamics of 

the 21st century business world.256

256 USCIS Webpage, “USCIS Posts Updated L-1B Adjudications Policy for 

Public Feedback” (Mar. 24, 2015); http://www.uscis.gov/news/uscis-postsupdated-l-1b-adjudications-policy-public-feedback (accessed May 21, 2015). 

As this Report is being finalized, the Ombudsman is 

tracking comments by stakeholders on the draft policy 

memorandum, and whether USCIS will make modifications 

in response to this feedback. Accordingly, the 

Ombudsman withholds further comment on the new policy 

memorandum and discussion of possible or actual impacts 

until after the memorandum becomes final.

Continued Concerns with the Administrative Appeals 

Process. Through the AAO and Motions to Reopen/

Reconsider,257 USCIS provides a formal process for 

petitioners and applicants to seek review of agency 

decisions. This course of action is costly; the filing fee is 

$630. While the AAO has reduced its processing time to 6 

months or less, a delay of months in reversing an incorrect 

agency decision can have significant adverse impacts 

on both the sponsoring employer and the beneficiary. 

Moreover, publicly released data show that less than 10 

percent of appeals in the agency’s business product lines 

are successful.258 Many legal representatives have reported 

that prior to filing a Motion to Reopen/Reconsider and 

appeal, employers make calculated business decisions 

whether to abandon their efforts to hire beneficiaries, or file 

anew under the plausible theory that another adjudicator 

will issue an approval for the same case with the same 

documentation. Until petitioners become more confident 

that the agency’s administrative appeals process will afford 

them fair, meaningful, and timely review of the underlying 

decision, this course of action may remain underutilized. 259

257 A Motion to Reopen is a request to the original decision maker to review a 

decision. The motion must be based on factual grounds, such as the discovery 

of new evidence or changed circumstances, and state the new facts to be 

provided in the reopened proceedings and be supported by affidavits or other 

documentary evidence. 8 C.F.R. § 103.5(a)(2). A Motion to Reconsider is a 

request to the original decision maker to review a decision based on new or 

additional legal arguments. The motion must establish that the decision was 

incorrect based on the evidence of record at the time of that decision, and it 

must state the reasons for reconsideration. A Motion to Reconsider must be 

supported by any pertinent precedent decisions to establish that the decision 

was based on an incorrect application of law or policy. 8 C.F.R. § 103.5(a)(3). 

See USCIS Webpage, “Questions and Answers: Appeals and Motions” (Dec. 

31, 2013); www.uscis.gov/forms/questions-and-answers-appeals-and-motions

(accessed May 19, 2015). 258 In FYs 2011 through 2014, the AAO sustained 58 H-1B appeals out of 2,805 

filed (2 percent) and 83 L-1 appeals out of 1,038 filed (8 percent). USCIS 

Webpage, “AAO Decision Data,” http://www.uscis.gov/about-us/directoratesand-program-offices/administrative-appeals-office-aao/aao-decision-data

(accessed May 19, 2015). 259 The Ombudsman’s Office notes that the AAO has recently taken an important

step forward with the publication of its first AAO Practice Manual, addressing 

one of several of the suggestions offered to the AAO in the Ombudsman’s 

2014 Annual Report. See USCIS Webpage “USCIS’ Administrative 

Appeals Office Introduces Its First Practice Manual” (Jan. 28, 2015); http://

content.govdelivery.com/accounts/USDHSCIS/bulletins/ecec19 (accessed 

May 21, 2015).

45
46 | 

The EB-5 Immigrant 

Investor Program

Responsible USCIS Office: Immigrant Investor 

Program Office

The EB-5 Immigrant Investor Program (EB-5 program) 

has surged in popularity in recent years as an effective 

way to attract foreign investment, to provide financing to 

large private and public projects, and for foreign nationals 

to obtain lawful permanent residency in the United States. 

While USCIS has hired new adjudicators and economists, 

it had 12,749 investor petitions (Form I-526, Immigrant 

Petition by Alien Entrepreneur) in its pending inventory 

as of March 31, 2015, with nearly 20 percent pending 

adjudication for more than a year.260 EB-5 processing times 

have been getting longer, with the Form I-526 processing 

time at 14 months and the Form I-924, Application for 

Regional Center Under the Immigrant Investor Pilot 

Program at 12.1 months.261 USCIS has provided technical 

assistance to Congress and is actively working with other 

DHS and government agencies to put safeguards in place to 

ensure program integrity.

260 Information provided by USCIS (May 6, 2015). 261 USCIS Webpage, “USCIS Processing Time Information for the Immigrant 

Investor Program Office” (May 12, 2015); https://egov.uscis.gov/cris/

processTimesDisplayInit.do (accessed May 19, 2015).

Background

Congress established the EB-5 program as a tool to help 

stimulate the U.S. economy by encouraging foreign 

investors to make sizable capital investments in exchange 

for the privilege of immigrating to the United States as 

Lawful Permanent Residents.262 By statute, a maximum 

of 10,000 immigrant visas per year are set aside for 

foreign investors and their immediate family members 

(spouses and unmarried children under 21 years of 

age).263 To qualify, an applicant must invest a minimum 

of $1 million in a new or existing U.S. business,264 or 

$500,000 in a business located in a Targeted Employment 

Area (an area that is experiencing an unemployment rate 

of at least 150 percent of the national average, or a rural 

area).265 The investor must also establish that invested 

funds are placed at risk, are traceable to a lawful source, 

have or will create (or preserve) at least 10 full-time jobs 

for qualifying U.S. workers within 2.5 years of petition 

approval, and that he or she is otherwise admissible.266

262 Immigration Act of 1990 § 121(b)(5), Pub. L. No. 101–649. 263 INA § 203(b)(5)(A). 264 INA § 203(b)(5)(C)(i). 265 INA § 203(b)(5)(B)(ii). See also 8 C.F.R. § 204.6(f).

266 8 C.F.R. §§ 204.6 (e), (j) and 216.6(c)(1)(iv).

In 1992, Congress modified the EB-5 provision, adding to it 

what is now referred to as the “Regional Center” program.267

The Regional Center program facilitates the concentration 

of EB-5 immigrant investor capital into larger projects 

deemed more likely to have significant regional and national 

impact.268 Today, 97 percent of EB-5 investment funds flow 

through the Regional Center program.269

267 Departments of Commerce, Justice, State, the Judiciary, and Related Agencies 

Appropriation Act, 1993, Pub. L. No. 102-395 (1992). See also Departments 

of Commerce, Justice, and State, the Judiciary, and Related Agencies 

Appropriation Act, 1998, Pub. L. No. 105-119 (1997). Unless extended, 

the statutory authority creating the Regional Center program will sunset on 

September 30, 2015. 268 A “Regional Center” is defined as “any economic unit, public or private, 

which is involved with the promotion of economic growth, including 

increased export sales, improved regional productivity, job creation, and 

increased domestic capital investment.” 8 C.F.R. § 204.6(e). 269 Determined based upon data reported by the DOS Report of the Visa Office, 

Table V (Part 3), http://www.travel.state.gov/content/dam/visas/Statistics/

AnnualReports/FY2014AnnualReport/FY14AnnualReport-TableV.pdf

(accessed Apr. 30, 2015).

USCIS administers the EB-5 program primarily through 

three forms: Form I-526; Form I-924; and Form I-829, 

Petition by Entrepreneur to Remove Conditions. Figure 

3.2, Form I-526 Volume and Pending Inventory at USCIS 

(Oct. 1, 2012 to Mar. 30, 2015) depicts the increase in filing 

volume and pending inventory for Forms I-526 since 2012. 

This increased volume shows the attractiveness of the 

program to foreign investors, but it presents a significant 

challenge to USCIS as it seeks to keep pace with filings.

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

On December 3, 2012, USCIS announced the 

reorganization of the EB-5 program,270 transferring EB-5 

adjudications from the CSC to the Washington, DC-based 

Immigrant Investor Program Office (IPO), under the 

USCIS Field Operations Directorate. In doing so, USCIS 

warned stakeholders that processing times for all EB-5 

petition types would likely temporarily increase.271 As 

this reporting period closes, adjudication processing times 

are getting longer, with Form I-526 processing time at 14 

months, Form I-924 processing at 12.1 months, and Form 

I-829 processing at 12.7 months.272

270 See USCIS Webpage, “Executive Summary: A Discussion about the EB-5 

Immigrant Investor Program Teleconference” (Feb. 26, 2014); http://www.

uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20

Engagements/PED-EB5-ExecSummary_02-26-14.pdf (accessed Apr. 30, 

2015). The IPO became operational on April 29, 2013. 271 Ombudsman Office Notes from USCIS Stakeholder Meeting (Feb. 26, 2014). 272 USCIS Webpage, “USCIS Processing Time Information for Immigrant 

Investor Program Office” (May 12, 2015); https://egov.uscis.gov/cris/

processTimesDisplayInit.do (accessed May 19, 2015).

Ongoing Concerns

EB-5 Program Processing Times. IPO leadership confirmed 

to the Ombudsman that lengthy processing times are likely 

to remain for the foreseeable future. Backlogs and yearslong processing times are disruptive to the orderly release 

of funds to job-creating projects, and delay the immigration 

process for foreign investors. Acknowledging the complexity 

of EB-5 program cases from an adjudicatory and national 

security perspective, the Ombudsman encourages USCIS to 

announce publicly its operational plan and timeline to reduce 

processing times and backlogs. This will allow investors and 

developers to better manage their expectations.

EB-5 Stakeholder Engagement. USCIS holds regular 

Quarterly EB-5 Stakeholder Engagements.273 Stakeholders 

nevertheless want more interactive engagements to solve 

novel and challenging issues that arise in this program. 

Many stakeholders posit that a format that allows for 

dialogue rather than a traditional question and answer 

session or a listening engagement would better serve both 

USCIS and the EB-5 community. 

273 USCIS held four EB-5 stakeholder meetings during this reporting period. 

EB-5 Visa Queues. In its May 2015 Visa Bulletin, DOS 

announced that the EB-5 visa category has become 

oversubscribed for Chinese nationals, and consequently, 

established a 2-year queue for EB-5 visa availability. As a 

result, with petition processing times in excess of a year, new 

EB-5 investors from China may encounter a 3-year wait or 

longer before they acquire Conditional Permanent Resident 

status. The establishment of an EB-5 cut-off date also raises 

new issues, including: 

(1) Given the projected multi-year wait for petition 

approval to visa availability, when will USCIS 

determine the question of job creation;

(2) Whether investors will be required to redeploy their 

investment capital if the project in which they invested 

is completed before they immigrate or prior to the filing 

of Form I-829; and 

(3) Whether the agency will allow investors to retain their 

original priority date if the project they invested in fails 

to create the required 10 jobs, and the investor is willing 

to reinvest in a new EB-5 project.

Addressing Abuse and Increasing Integrity in the EB-5 

Program. USCIS is coordinating with the Security and 

Exchange Commission, DOJ, the Federal Bureau of 

Investigation, and other components of government to 

deter, detect, and eliminate abuse in the EB-5 program. 

Over the past several years, as well as within this reporting 

period, USCIS terminated several regional centers.274

274 Since 2008, USCIS has terminated 29 regional centers for various reasons. 

USCIS Webpage, “Terminated Regional Centers” (May 14, 2015); http://

www.uscis.gov/working-united-states/permanent-workers/employmentbased-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-process/

terminated-regional-centers (accessed May 18, 2015).

New policies and protocols help ensure that the EB-5 

investment capital can be traced to a lawful source, that 

jobs projected are in fact created, and that each EB-5 

investor is otherwise admissible and does not pose a 

national security risk. As the agency continues these 

efforts, the Ombudsman also urges USCIS to consider 

creating a pathway for victims of EB-5 fraud that would 

allow them to reinvest and retain their original priority date. 

On March 24, 2015, the DHS Inspector General issued 

a report addressing assertions advanced by some USCIS 

employees of access outside the normal adjudicatory 

process to decision-makers, which influenced individual 

adjudication outcomes in three cases.275 On March 26, 

2015, Ombudsman Odom testified before the U.S. House 

of Representatives Committee on Homeland Security, 

with Inspector General John Roth, regarding leadership 

challenges at the DHS specific to the EB-5 program. In her 

testimony, Ombudsman Odom stated: 

275 DHS Office of Inspector General Memorandum, “Investigation into Employee 

Complaints about Management of U.S. Citizenship and Immigration 

Services’ EB-5 Program” (Mar. 24, 2015); https://www.oig.dhs.gov/assets/

Mga/OIG_mga-032415.pdf (accessed Apr. 30, 2015).

47
48 | 

The EB-5 program has presented USCIS with 

significant challenges over the years, due to many 

variables, including the complexity of projects 

and the financial arrangements with investors. 

My office, both prior to my arrival and during 

my tenure, has worked to resolve requests for 

case assistance from EB-5 Regional Centers and 

prospective investors, as well as on systemic 

issues, such as lengthy processing times, gaps 

in policy, and lack of deference to prior USCIS 

EB-5 decisions.... While some cases, like those 

in the EB-5 program, involve financially powerful 

interests... [i]n my experience working with Mr. 

Mayorkas, we did not always agree, but I always 

found his approach to be thoughtful and grounded 

on facts and the law. His direct engagement with 

EB-5 stakeholders and customers was responsive to 

the rising number of pleas by frustrated investors, 

regional center representatives, elected officials, 

and other individuals involved in these often 

large-scale, high-impact projects that faced lengthy 

processing delays.276

276 Ombudsman’s Testimony before the U.S. House of Representatives 

Committee on Homeland Security, “Leadership Challenges at the 

Department of Homeland Security: Allegations of Improper Influence 

Regarding Special Visas” (Mar. 26, 2015). 

IPO leadership at USCIS is determined to reduce processing 

times and improve predictability and consistency in 

the EB-5 program, while simultaneously continuing to 

enhance overall program integrity. In the coming year, the 

Ombudsman will remain actively engaged in monitoring 

USCIS administration of this job-creating program.

Seasonal Delays in 

Employment Authorization 

Processing

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates

Eligible individuals in the United States may apply 

for employment authorization by filing Form I-765, 

Application for Employment Authorization with USCIS. 

Applicants who receive EADs are then able to commence 

(or resume) employment, as well as apply for Social 

Security Numbers and driver’s licenses. USCIS received 

1,477,898 Forms I-765 in the reporting period.277 While the 

agency adjudicates the vast majority of EAD applications 

within the 90-day regulatory processing timeframe, 

every year thousands of eligible individuals encounter 

processing delays. When processing of employment 

authorization applications is delayed, both individuals 

and their actual or would-be employers suffer adverse 

consequences. Applicants experience financial hardship 

due to job interruption and employment termination; they 

may lose or have difficulty renewing driver’s licenses; 

business operations stall due to loss of employee services; 

and families face suspension of essential income and 

health benefits. Ombudsman data reveal a seasonal 

pattern with an increase in requests for case assistance in 

the summer months due to adjudications that exceed the 

agency’s 90 day processing requirement. This section 

provides suggested steps USCIS could take to address these 

seasonal employment authorization processing delays.

277 See USCIS Webpage, “Data Set: All USCIS Application and Petition 

Form Types” (Feb. 12, 2015); http://www.uscis.gov/tools/reports-studies/

immigration-forms-data/data-set-all-uscis-application-and-petition-form-types

(accessed Apr. 28, 2015).

Background

Eligible applicants include those who are filing or have a 

pending Form I-485, Application to Register Permanent 

Residence or Adjust Status; L-2 nonimmigrant status 

(spouses of L-1 nonimmigrants); individuals granted 

deferred action or DACA; those granted TPS;278 and most 

recently, certain H-4 nonimmigrant status (spouses of 

H-1B nonimmigrants).279 USCIS is required by regulation 

to adjudicate most EAD applications within 90 days 

of receipt.280

278 INA § 244; 8 C.F.R. § 244.6. 279 See “Employment Authorization for Certain H-4 Dependent Spouses,” 80 

Fed. Reg. 10283 (Feb. 25, 2015). Employment eligibility extended to H-4 

dependent spouses of principal H-1B nonimmigrants who have already started 

the process of seeking lawful permanent resident status through employment. 280 8 C.F.R. § 274a.13(d). The 90-day regulatory requirement does not apply to 

two categories: (1) asylum applicants under 8 C.F.R. § 274a.12(c)(8); and (2) 

certain adjustment of status applicants under the Haitian Refugee Immigrant 

Fairness Act. For those seeking DACA, the 90-day regulatory time period 

starts after USCIS adjudicates the Form I-821D, Consideration of Deferred 

Action for Childhood Arrivals and makes a determination as to economic 

necessity under 8 C.F.R. § 274a.12(c)(14).

The 90-day processing clock stops if USCIS issues an 

RFE and resumes when USCIS receives the response to 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

the RFE.281 When USCIS issues a request for initial282

evidence, the 90-day regulatory timeframe to complete 

the adjudication resets to the date USCIS receives the 

response.283 Absent the issuance of an RFE, individuals 

reasonably expect that USCIS will adjudicate EAD 

applications within 90 days of receipt.

281 USCIS Webpage, “Tip Sheet: Employment Authorization Applications 

Pending More than 75 Days” (Oct. 26, 2011); http://www.uscis.gov/forms/

tip-sheet-employment-authorization-applications-pending-more-75-days

(accessed Mar. 12, 2015). 282 Initial evidence is defined as any piece of evidence specified by regulation or 

specifically requested on the form or form instructions. This term is in distinction 

to “additional evidence” which is evidence beyond that which is required by 

regulations, form, or form instructions, but which may assist in proving eligibility 

where the initial evidence submitted does not. USCIS Webpage, “Tip Sheet: 

Employment Authorization Applications Pending More than 75 Days” (Oct. 

26, 2011); http://www.uscis.gov/forms/tip-sheet-employment-authorizationapplications-pending-more-75-days (accessed Mar. 12, 2015). 283 USCIS Interoffice Memorandum, “Case Management Timelines” (Oct 27, 

2006); http://www.uscis.gov/sites/default/files/files/pressrelease/casemgmt.pdf

(accessed Apr. 23, 2015).

The Ombudsman has been tracking EAD issues since 

2006,284 and has issued recommendations three times on 

this subject.285 In response to the Ombudsman’s 2008 

recommendations, USCIS agreed to accept status inquiries 

on EAD applications pending more than 75 days (excluding 

any stoppage related to the issuance of an RFE).286 To make 

such an inquiry, the applicant or applicant’s representative 

may contact the NCSC and request that an Approaching 

Regulatory Timeframe “service request” be created.287 The 

service request is sent to the USCIS office of jurisdiction 

for prompt action. USCIS received 46,041 such service 

requests in FY 2014.288

284 See Ombudsman’s Annual Reports 2006, p. 75; 2008, p. 12; and 2012, p. 15. 285 Ombudsman Recommendation 25, “Recommendation from the CIS 

Ombudsman to the Director, USCIS” (Mar. 20, 2006); http://www.dhs.gov/

xlibrary/assets/CISOmbudsman_RR_25_EAD_03-20-06.pdf (accessed Mar. 

12, 2015); Ombudsman Recommendation 35, “Recommendations on USCIS 

Processing Delays for Employment Authorization Documents” (Oct. 2, 

2008); http://www.dhs.gov/xlibrary/assets/cisomb_ead_recommendation_35.

pdf (accessed Mar. 12, 2015); Ombudsman Recommendation, “Employment 

Authorization Documents: Meeting the 90 Day Mandate and Minimizing 

the Impact of Delay on Individuals and Employers” (Jul. 18, 2011); 

http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorizationdocuments-07182011.pdf (accessed Mar. 12, 2015). 286 USCIS Response to Recommendation 35 (Jan. 2, 2009); https://www.dhs.gov/

xlibrary/assets/uscis_response_to_cisomb_recommendation35_01_02_09.pdf. 287 USCIS Webpage, “Tip Sheet: Employment Authorization Applications 

Pending More than 75 Days” (Oct. 26, 2011); http://www.uscis.gov/forms/

tip-sheet-employment-authorization-applications-pending-more-75-days

(accessed Mar. 12, 2015). 288 Information provided by USCIS (Apr. 30, 2015). 

In March 2015, the Ombudsman received a request for 

case assistance from an individual who filed for an EAD 

renewal in December 2014; the case was pending past 

the 90-day regulatory period. 

The individual’s employer had placed the applicant on 

Leave Without Pay. The Ombudsman contacted USCIS, and 

within 24 hours, the applicant’s case was approved.

Customers regularly turn to the Ombudsman for case 

assistance when their Forms I-765 remain pending outside 

of the 90-day regulatory processing timeframe. During this 

reporting period (non-DACA) EAD inquiries comprised 

12 percent of the Ombudsman’s casework. Working in 

conjunction with USCIS service centers and Headquarters, 

the Ombudsman is frequently able to timely resolve most 

of these case inquiries. 

The primary issue presented to the Ombudsman in requests 

for case assistance is delays in adjudication; other issues 

include mailing and delivery problems, and card production 

errors (misprinted names, gender or photos). The 

Ombudsman also receives EAD inquiries concerning TPS 

eligibility and Optional Practical Training289 (OPT) filings. 

289 See 8 C.F.R §§ 214.2(f)(10-12) and 274a.12(b)(6)(iv).

Ongoing Concerns

Ombudsman data reveal a seasonal pattern with an increase 

in requests for case assistance in the summer months due to 

adjudications that exceed the agency’s 90-day processing 

requirement. This increase appears to be related to several 

factors, including but not limited to: 

(1) Predictable annual applications by students seeking OPT; 

(2) Cyclical renewal of TPS status and the accompanying 

employment authorization applications; and

(3) Ongoing renewal of EADs issued in connection with 

the surge in the filing for adjustment of status (which 

continues to provide ancillary employment eligibility 

benefits) that occurred during the summer of 2007. 

In light of these seasonal increases in EAD applications, the 

Ombudsman encourages the agency to prepare in advance. 

Possible adjustments the agency could make include:

M Shifting additional resources to the Form I-765 product 

lines during the summer months. 

49
50 | ANNUAL REPORT TO CONGRESS JUNE 2015

M Re-examining the effectiveness of its current method of 

“sweeping” its pending Form I-765 inventory to identify and 

adjudicate EAD applications as they approach the 90-day 

mark. The Ombudsman learned that USCIS service centers 

and NBC use different methods to conducts these sweeps. 

While they appear to be effective in the vast majority of 

cases, the Ombudsman notes that some cases appear to be 

missed. At a minimum, sweeps should be uniform, routine, 

and conducted sufficiently in advance of 90 days to allow 

for the timely adjudication, production and mailing of the 

card to applicants. 

M Conducting additional outreach to notify EAD applicants 

that they should file their applications 120 days prior to 

the expiration of their current employment document to 

minimize the chance of a lapse in work authorization.

Employment-Based 

Immigrant Petition 

(Form I-140) Processing

Responsible USCIS Offices: Service Center 

Operations Directorate and Office of Policy 

and Strategy

Stakeholders continue to report concerns pertaining 

to USCIS’ handling of employment-based immigrant 

petitions. With extensive backlogs in certain employmentbased preference categories due to statutory visa caps 

and potential changes to USCIS policies on petitionerbeneficiary rights, it is imperative that USCIS maintain 

clear and consistent communication with its stakeholders. 

In recent months, USCIS has taken steps to review its 

longstanding policy on who is an “affected party” for 

employment-based petitions. The Ombudsman encourages 

the agency to consider the significant case law supporting 

some form of legal standing for beneficiaries of a Form 

I-140 petition. 

Background

Employment-based immigration in most cases is a threestep process.290 First, the foreign national’s prospective 

employer must apply for a labor certification from 

290 Certain qualified foreign nationals may apply for an employment-based 

visa through a truncated process based on their area of expertise or type of 

employment.

DOL.291 DOL will issue the certification if there are no 

available, qualified, and willing U.S. workers for the 

position and if the foreign national’s employment “will 

not adversely affect the wages and working conditions” of 

other workers.292 The date the labor certification is filed 

with DOL becomes the “priority date,” or the intending 

immigrant’s place in the queue for an immigrant visa. 

Second, the employer must file Form I-140, Immigrant 

Petition for Alien Worker with USCIS and indicate what 

eligibility classification, or preference category, is being 

sought.293 See Figure 3.3, I-140 & I-360 Filing Receipts 

and Decision Rates by Preference Category for the general 

filing data and decision rates.294 Third, the foreign national 

applies for an immigrant visa.295 If the foreign national is 

in the United States, the intending immigrant may apply 

to USCIS to “adjust” status to that of a Lawful Permanent 

Resident. If the foreign national resides abroad or prefers 

to receive an immigrant visa outside of the United States 

and re-enter as an immigrant, the process is completed at a 

DOS embassy or consulate. 

291 INA § 203(b). 292 INA § 212(a)(5)(A)(i)(II). 293 INA § 204(a)(1)(F); 8 C.F.R. § 204.5(a). 294 Information provided by USCIS (Nov. 18, 2014). 295 INA § 245; 8 C.F.R. § 245.2(a)(3)(ii).

An immigrant visa is available only if the numerical limit 

for the applicant’s country of chargeability, and type of 

visa for which eligibility has been established, has not 

been reached for the fiscal year. By statute, generally 

up to 140,000 employment-based preference immigrant 

visas may be issued to eligible beneficiaries of approved 

immigrant petitions (and their eligible family members) in 

a fiscal year.296

296 INA § 201(d).

The DOS Visa Bulletin, published monthly, summarizes 

the availability of immigrant numbers.297 See Figure 3.4, 

Visa Bulletin April 2015 No. 79 issued March 11, 2015. 

When a country’s demand oversubscribes the numerical 

limit, DOS must set a cut-off date, which means only 

applicants who have a priority date earlier than the cut-off 

date may be allocated an immigrant visa.298 Countries with 

larger numbers of would-be immigrants, such as China 

and India, are subject to cut-off dates ranging from 4 to 11 

297 DOS Webpage, “Visa Bulletin;” http://travel.state.gov/content/visas/english/

law-and-policy/bulletin/2015/visa-bulletin-for-april-2015.html (accessed Apr. 

17, 2015). 298 DOS publishes a monthly Visa Bulletin to denote the changes in the 

immigrant visa categories and to mark the dates that form the head of each 

immigrant visa queue. DOS Webpage, “Visa Bulletin;” http://travel.state.

gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-formarch-2015.html (accessed Mar. 10, 2015).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

3.3 I-140 & I-360 Filing Receipts and Decision Rates by Preference Category 

(FY 2009 through 2014)*

EB1 EB2 EB3* EB4

FY Receipts Approval

Rate

Denial

Rate Receipts ApprovalRate

Denial

Rate Receipts ApprovalRate

Denial

Rate Receipts ApprovalRate

Denial

Rate

2009 17,157 78% 22% 19,801 91% 9% 19,959 79% 21% 6,880 67% 33%

2010 17,584 79% 21% 38,563 93% 7% 23,470 76% 24% 4,847 77% 23%

2011 17,106 84% 16% 47,576 95% 5% 19,929 85% 15% 6,639 83% 17%

2012 17,609 84% 16% 45,870 94% 6% 10,926 81% 19% 5,934 74% 26%

2013 20,258 87% 13% 46,720 94% 6% 4,617 81% 19% 8,649 80% 20%

2014* 22,874 89% 11% 63,644 93% 7% 485 18% 82% 6,949 81% 19%

Grand

Total 112,588 262,174 79,386 39,898

*USCIS has confirmed the accuracy of these numbers. USCIS approval and denial rates are calculated from decisions made in that fiscal year and do not necessarily reflect 

applications and petitions filed that same fiscal year.

Source: Information provided by USCIS (Nov. 18, 2014).

3.4 Visa Bulletin April 2015 No. 79 issued March 11, 2015

EMPLOYMENT BASED

ALL CHANGEABILITY 

AREAS EXCEPT 

THOSE LISTED

CHINAMAINLAND BORN INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01APR11 01SEP07 C C

3rd 01OCT14 01JAN11 08JAN04 01OCT14 01OCT14

Other Workers 01OCT14 15AUG05 08JAN04 01OCT14 01OCT14

4th C C C C C

Certain Religious Workers C C C C C

5th 

Targeted Employment Areas/

Regional Centers

C C C C C

Source: DOS Webpage (Mar. 11, 2015).

years.299 Every month DOS reviews and adjusts its cutoff dates based on “reasonable estimates”300 that include 

consideration of USCIS’ adjustment of status application 

inventory and U.S. consulate demands.

299 DOS Webpage, “Visa Bulletin;” http://travel.state.gov/content/visas/english/

law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html (accessed 

Mar. 10, 2015). Actual wait times may in fact be longer than indicated by the 

cut-off dates, as forward movement does not correlate to the waiting time. 

See Ombudsman’s Annual Report 2010, pp. 23-30. 300 INA § 203(g).

When the DOS Visa Bulletin is current for an employmentbased preference category, if the employer has not already 

filed an immigrant petition, the employer and beneficiary 

may elect to concurrently file Forms I-140 and I-485, 

Application to Register Permanent Residence or Adjust 

Status. USCIS first adjudicates the I-140 petition, and upon

approval, will then adjudicate the Form I-485. USCIS has 

stated that it will issue a decision on the I-140 petition 

as soon as it is available, irrespective of the pending 

I-485 application.301

301 Information provided by USCIS (Apr. 8, 2015).

When a cut-off date retrogresses after the filing of an 

adjustment application, the beneficiary becomes ineligible 

to receive an immigrant visa. USCIS will hold the 

applicant’s Form I-485 until the priority date is again 

current. After the Form I-485 is pending over 180 days, the 

applicant may change or “port” to a new position that is in 

51
52 | 

the “same or similar” occupation as the position stated on 

the original Form I-140.302

302 AC21 § 106(a); INA § 204(j).

If USCIS takes action with respect to the I-140 petition 

subsequent to approval, such as issuing a Notice of Intent 

to Revoke, the notice will be sent to the petitioner and, 

if applicable, the petitioner’s legal representative. The 

beneficiary receives no notice. If the petitioning employer 

elects not to respond to USCIS’ request or notice, the 

agency may revoke its approval of the I-140 petition, 

and the beneficiary may be left without the required 

underlying petition. The beneficiary has significant interest 

in the underlying petition, but may not become aware of 

its revocation until USCIS adjudicates the individual’s 

I-485 application.

Ongoing Concerns

Stakeholders continue to bring to the Ombudsman concerns 

about USCIS’ communication with petitioners and applicants 

in the employment-based immigration process. With long 

visa queues, these frustrations will continue until USCIS 

takes action. 

USCIS Processing Times. Petitioners and applicants identify 

ongoing frustrations with USCIS posted processing times for 

concurrently filed I-140 and I-485 applications.303 USCIS 

currently posts that it is processing I-140 petitions within 4 

to 8 months of filing, and 9 months for I-485 applications.304 

These processing times are sequential. That is, USCIS first 

adjudicates the I-140 and then the I-485 (provided a visa 

number is available as published in the Visa Bulletin), so 

individuals must add the two processing times together to 

understand how long it will take to complete processing. 

However, many petitioners report waiting over a year just 

for a decision on I-140 petitions.305 USCIS publishes no 

information on the percentage of petitions actually adjudicated 

within the processing time goal or posted processing time. 

As discussed in the section titled Calculating Processing 

Times of this Report, a more transparent methodology for 

calculating processing times would better inform applicants, 

manage expectations, and help conserve USCIS resources that 

currently are directed to responding to requests for case status.

303 USCIS processing times differ from DOS visa queues, which are based on 

annual visa limits. 304 USCIS Webpages, “USCIS Processing Time Information for the 

Nebraska Service Center” (Feb. 28, 2015); https://egov.uscis.gov/cris/

processTimesDisplayInit.do (accessed Apr. 29, 2015); USCIS Webpage, 

“USCIS Processing Time Information for the Texas Service Center” (Feb. 28, 

2015); https://egov.uscis.gov/cris/processTimesDisplayInit.do (accessed Apr. 

29, 2015). 305 In FY 2014, the Ombudsman received 100 requests for case assistance that 

had been pending with USCIS over 1 year. 

Petition Upgrades and Downgrades. While waiting to 

complete employment-based processing, an applicant 

may change visa preference categories because of career 

advancement or to take advantage of movement in the 

different preference category queues. The petitioning 

employer must file a new Form I-140 with USCIS. If the 

petition is approved, the beneficiary may file a request 

with USCIS to use the second I-140 petition to determine 

eligibility for an immigrant visa, resulting in an “upgrade” 

or “downgrade” of the beneficiary’s preference category. 

Typically changes occur between employment-based third 

preference (EB-3) to employment-based second preference 

(EB-2). Applicants report difficulties in receiving 

information verifying USCIS’ receipt of the request for a 

new preference category.

USCIS systems do not record an applicant’s request to 

upgrade or downgrade the preference category for the 

pending Form I-485 application, and USCIS does not send 

the applicant a written acknowledgement that the I-485 

will be adjudicated under the new preference category. 

The applicant is thus left to wait and hope that the agency 

received the request and is taking appropriate action. An 

applicant who calls USCIS’ NCSC to confirm receipt and 

acceptance of the request to change preference category 

will need to open an inquiry using USCIS’ Service Request 

Management Tool. To respond to the service request, 

the USCIS service center must retrieve the file, review 

its contents, and make a determination for the applicant. 

Stakeholders would greatly benefit from better tracking and 

communication for preference category changes; it would 

also better inform DOS of visa demand to more precisely 

set cut-off dates in the Visa Bulletin.

Applicant’s Rights and Approved I-140s. Applicants 

have long questioned USCIS’ interpretation of who is 

an “affected party” when appealing or responding to the 

denial or revocation of an approved employment-based 

petition.306 USCIS has taken the position and courts have 

held that only the petitioner—and not the beneficiary—has 

legal standing before the agency.307 See Figure 3.5, Rate of 

I-140 Revocations to Receipts by Preference Category.

306 8 C.F.R. § 103.3(a)(1)(iii)(B). 307 De Jesus Ramirez v. Reich, 156 F.3d 1273, 1276 (D.C. Cir. 1998) (the 

court held that a foreign national has legal standing when the statute’s text, 

structure, or legislative history does not preclude such action.); Taneja v. 

Smith, 795 F.2d 355 & 358 n. 7 (4th Cir.1986) (the court held that the foreign 

national “was in the ‘zone of interest’ of the statute and had standing to 

challenge” the denial of his prospective employer’s visa application).

Specifically, the EB-3 preference category, which has 

experienced some of the longest wait times in the visa 

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queues, is now showing significant spikes in revocation and 

denial rates. This trend can have significant adverse results. 

An employee with a pending Form I-290B, Notice of 

Appeal or Motion requested case assistance from the 

Ombudsman. The employee’s Form I-485 application 

was denied because USCIS determined that he lacked 

an underlying approved I-140 petition. In 2010, USCIS 

had approved his former employer’s I-140 petition, but 

later revoked it in 2014. The employee believed that the 

portability provisions preserved his legal right to adjust 

status based on the previously approved I-140, so long 

as that petition was not revoked for cause, such as fraud 

or willful misrepresentation. The individual attempted 

to resolve this issue with USCIS but could not obtain 

information regarding the petitioner’s I-140 petition. His 

only option was to file a motion with a $630 filing fee 

requesting review of the I-485 application and the legal 

applicability of the portability provision to his petition. 

The Ombudsman contacted USCIS, which granted the 

applicant’s motion and reopened his I-485 application. 

In this example, USCIS’ policy prevented the beneficiary 

from accessing key information needed to contest a denial 

because the beneficiary was not deemed to be an “affected 

party.” Congress established specific rights in AC21 for 

beneficiaries of employment-based immigrant petitions. 

Several courts have now questioned this analysis, finding 

that the beneficiary does in fact have standing to seek 

redress in an issue of immigrant petition portability.308

308 See, e.g., Kurapati v. USCIS, 775 F.3d 1255 (11th Cir. 2014) (the beneficiary 

of an I-140 visa petition is within the zone of interests protected by the I-140 

visa petition process); see also Patel v. USCIS, 732 F.3d 633 (6th Cir. 2013);

De Jesus Ramirez v. Reich, 156 F.3d 1273 (D.C. Cir. 1998); Taneja v. Smith, 

795 F.2d 355 (4th Cir.1986); and Stenographic Machines, Inc. v. Regional 

Administrator for Employment and Training, 577 F.2d 521 (7th Cir. 1978).

On April 7, 2015, USCIS recognized the need to review 

its policy and called for amicus curiae briefing on this 

issue. Specifically, the AAO announced it was seeking 

amicus briefs on whether the beneficiaries of certain 

immigrant visa petitions have standing to participate in the 

administrative adjudication process.309 The Ombudsman 

encourages the AAO to publish the briefs received on this 

issue and to promptly clarify the legal standard pertaining 

to beneficiary standing in response to the recent court 

activity in this area.

309 USCIS Webpage, “USCIS Administrative Appeals Office: Request for Amicus 

Curiae Briefs;” http://www.uscis.gov/sites/default/files/USCIS/About%20Us/

Directorates%20and%20Program%20Offices/AAO/3-27-15-AAOamicus.pdf

(accessed Apr. 17, 2015).

Conclusion

Extensive employment-based visa backlogs and changing 

USCIS policies on petitioner-beneficiary rights require that 

USCIS maintain clear and consistent communication with 

its stakeholders. The Ombudsman will continue to monitor 

USCIS policy development in this area.

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54 | ANNUAL REPORT TO CONGRESS JUNE 2015

Humanitarian

U.S. immigration law provides humanitarian relief for 

immigrants in the most desperate situations. This reporting 

period, USCIS developed and implemented the in-country 

refugee/parole program for Central American minors in El 

Salvador, Guatemala, and Honduras. As noted in prior Annual 

Reports, the Ombudsman continues to be concerned with 

ongoing adjudication issues and delays in the processing of 

Special Immigrant Juvenile petitions, fee waiver requests, 

INA section 204(l) and humanitarian reinstatement requests, 

and asylum applications. U visas, T visas, and VAWA 

programs, which provide protection for victims of domestic 

violence, trafficking, and other crimes, are critical to 

vulnerable populations.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 55

Special Immigrant Juveniles

Responsible USCIS Offices: Field Operations 

Directorate, Office of Policy and Strategy, and Office 

of Chief Counsel

The Special Immigrant Juvenile (SIJ) program is 

designed to “help children in the United States who 

have been abused, abandoned, or neglected.”310 The 

program has seen significant legislative and policy 

changes over the years—1997, 1998, 1999, 2004, 2008, 

and 2009. Stakeholders report and the Ombudsman has 

observed adjudication inconsistencies regarding consent 

requirements, age-inappropriate interviewing techniques, 

and delayed processing times for SIJ adjudications. 

Inconsistent with the statutory scheme and USCIS’ 

own training materials, adjudicators continue to seek 

evidence underlying state court dependency orders. The 

310 See generally USCIS Webpage, “Special Immigrant Juveniles (SIJ) Status” 

(May 28, 2014); http://www.uscis.gov/green-card/special-immigrantjuveniles/special-immigrant-juveniles-sij-status (accessed May 27, 2015).

Ombudsman brought these concerns to USCIS’ attention 

this year as well as in prior Annual Reports,311 and 

continues to receive reports from stakeholders experiencing 

difficulties with pending or recently adjudicated petitions.

311 Ombudsman’s Annual Reports 2014, pp. 13-15; 2013, pp. 14-16; 2012, pp. 

21-22; and 2011, pp. 20-21.

Background

Statutory and Regulatory Framework. Congress 

established the SIJ category in 1990 to provide protection 

to qualifying children lacking legal immigration status.312 

To be eligible for SIJ status, a juvenile court must declare 

the child to be dependent on the court, or legally commit 

the child to the custody of a state agency or an individual 

appointed by a state or juvenile court; the court must also 

312 Immigration Act of 1990, Pub. L. No. 101–649 at § 153(a)(3)(J) (Nov. 29, 

1990). Historically, U.S. government efforts to protect children resulted in 

a gap for immigrant children who were protected during their childhood but 

grew into adults with no legal immigration status. See generally “Regulating 

Consent: Protecting Undocumented Immigrant Children from their (Evil) 

Step-Uncle Sam, or How to Ameliorate the Impact of the 1997 Amendments 

to the SIJ Law,” Angela Lloyd, 15 B.U. Pub. Int. L.J. 237, at 1.
56 | 

declare the child cannot be reunited with one or both of 

the child’s parents due to abuse, neglect, abandonment, 

or a similar basis under state law.313 An administrative or 

judicial proceeding must also determine it would not be in 

the best interests of the child to be returned to the child’s or 

parents’ country of citizenship or last habitual residence.314

313 INA § 101(a)(27)(J). 314 Id.

Congress amended the SIJ definition in 1997 by restricting 

it to only those juveniles deemed eligible for long-term 

foster care.315 The amendment also required “express 

consent” to the dependency order, which the statute did 

not define, to serve “as a precondition to the grant of 

[SIJ] status.”316 Congress expressed its intent in these 

limitations to qualify “those juveniles for whom this relief 

was created, namely abandoned, neglected, or abused 

children, by requiring the Attorney General [now the 

Secretary of Homeland Security] to determine that neither 

the dependency order nor the administrative or judicial 

determination of the alien’s best interest was sought 

primarily for the purpose of obtaining [immigration] status 

... rather than for the purpose of obtaining relief from 

abuse or neglect.”317 

315 Departments of Commerce, Justice, and State, the Judiciary, and Related 

Agencies Appropriations Act of 1998, Pub. L. No. 105-119, § 113, 111 Stat. 

2440 (Nov. 26, 1997); see Gao v. Jenifer, 185 F.3d 548, at 552 (1999). 316 Id. 317 H.R. Conf. Rep. 105-405, at 130 (Nov. 13, 1997).

USCIS issued two policy memoranda in 1998 and 1999 

instructing adjudicators to request information to enable 

them to make independent findings regarding abuse, 

abandonment, neglect, and best interests.318 This was in 

stark contrast to SIJ final regulations published in 1993, 

which recognized that it “would be both impractical 

and inappropriate for the Service to routinely readjudicate judicial or social service agency administrative 

determinations ....”319 In 2004, USCIS issued a third 

Policy Memorandum, reminding adjudicators not to 

“second-guess” findings made by state courts because 

“express consent is limited to the purpose of determining 

[SIJ] status, and not for making determinations of 

318 INS Memorandum, “Interim Field Guidance relating to Public Law 105-119 

(Sec. 113) amending Section 101(a)(27)(J) of the INA–Special Immigrant 

Juveniles” (Aug. 7, 1998) (Copy with the Ombudsman); INS Memorandum, 

“Special Immigrant Juveniles - Memorandum #2: Clarification of Interim 

Field Guidance” (Jul. 9, 1999); http://www.uscrirefugees.org/2010Website/5_

Resources/5_4_For_Lawyers/5_4_2_Special_Immigrant_Juvenile_

Status/5_4_2_3_Published_Decisions_and_Memoranda/Cook_Thomas_

SpecialImmigrantJuvenilesMemorandum.pdf (accessed Jun. 1, 2015). 319 “Special Immigrant Status; Final Rule,” 58 Fed. Reg. 42843-51, 42847 (Aug. 

12, 1993).

dependency status.”320 In the same memorandum, USCIS 

instructs adjudicators to examine state court orders for 

independent assurance that courts acted in an “informed” 

way, and consent to SIJ only if the adjudicator was 

aware of the facts that formed the basis for the juvenile 

court’s rulings.321 This squarely contradicts the agency’s 

instruction not to “second-guess” findings made by 

state courts.

320 USCIS Interoffice Memorandum, “Memorandum #3–Field Guidance 

on Special Immigrant Juvenile Status Petitions” (May 27, 2004); http://

www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_

Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf (accessed 

May 27, 2015). 321 Id.

The William Wilberforce Trafficking Victims Protection 

Reauthorization Act of 2008 (TVPRA) further amended 

the SIJ statute by clarifying that the Secretary of Homeland 

Security must consent to the grant of SIJ status, and no 

longer give express consent to the state court dependency 

order “serving as a precondition to the grant” of SIJ 

status.322 The previous statutory language provided no 

definition of express consent, which contributed to the 

confusion over whether USCIS should examine state court 

findings for independent assurance that the court acted in 

an informed way. By eliminating the “express consent” 

requirement, TVPRA recognized state court authority 

and “presumptive competence”323 over determinations of 

dependency, abuse, neglect, abandonment, reunification, 

and the best interests of children. TVPRA also removed 

the need for a state court to determine eligibility for longterm foster care, and replaced it with a requirement that the 

state court determine whether reunification with one or both 

parents was viable due to abuse, neglect, abandonment, 

or a similar basis found under state law.324 Accordingly, 

in a fourth policy memorandum issued in 2009, USCIS 

instructed adjudicators to “ensure that juvenile court orders 

submitted as evidence with an SIJ petition” include this 

new statutory language regarding reunification.325

322 TVPRA § 235(d)(1). 323 Gao v. Jenifer, 185 F.3d 548 (1999) at 556, citing Holmes Fin. Assocs. v. 

Resolution Trust Corp., 33 F.3d 561, 565 (6th Cir. 1994). 324 TVPRA § 235(d)(1)(B). 325 USCIS Interoffice Memorandum, HQOPS 70/8.5 “Trafficking Victims 

Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status 

Provisions” (Mar. 24, 2009). http://www.uscis.gov/sites/default/files/USCIS/

Laws/Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf

Stakeholder Concerns. In 2010 and 2011, stakeholders 

reported receiving RFEs seeking detailed information 

regarding the content of state court orders. Stakeholders 

also reported age-inappropriate interviewing techniques 

by immigration officers, such as the use of language that 

was not appropriate for children. They recounted problems 

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with USCIS not meeting statutory processing times,326 a 

lack of procedures for requesting expedited review of SIJ 

petitions for those in jeopardy of aging out of eligibility, 

and repeated denials of fee waiver requests in cases where 

applicants appeared to be prima facie eligible. These 

concerns prompted the Ombudsman to issue formal 

recommendations in April 2011.327 Since the publication 

of these recommendations, the Ombudsman has continued 

providing USCIS with stakeholder feedback, examples of 

problem cases, and other information relevant to improving 

SIJ adjudication. 

326 TVPRA § 235(d)(2) requires that USCIS complete SIJ adjudications within 

180 days of filing. 327 Ombudsman Recommendation 47, “Special Immigrant Juvenile 

Adjudications: An Opportunity for Adoption of Best Practices” (Apr. 15, 

2011); http://www.dhs.gov/xlibrary/assets/Citizenship-and-ImmigrationServices-Ombudsman-Recommendation-Special-Immigrant-JuvenileAdjudications.pdf (accessed June 23, 2015). The Ombudsman recommended 

that USCIS: (1) standardize its practices of: (a) providing specialized 

training for those officers adjudicating SIJ petitions, (b) establishing dedicated 

SIJ units or Points of Contact (POCs) at local offices, and (c) ensuring 

adjudications are completed within the statutory timeframe; (2) cease 

requesting the evidence underlying juvenile court determinations of foreign 

child dependency; and (3) issue guidance, including agency regulations, 

regarding adequate evidence for SIJ filings, including general criteria for what 

triggers an interview for the SIJ petition, and make this information available 

on the USCIS website.

SIJ Adjudication Training. SIJ is a complex area 

which has undergone substantial legislative change that 

now supersedes existing regulations and written policy 

guidance. As a result, training is essential to ensure that 

adjudicators have the necessary resources to apply the 

law appropriately and consistently. In early 2014, USCIS 

held a training session for regional selectees who then 

provided training materials to USCIS adjudicators in the 

field.328 All USCIS officers adjudicating SIJ petitions are 

now required to review these training materials. The new 

training module includes instruction on USCIS’ consent 

requirement and directs adjudicators to accept court orders 

containing or supplemented by specific findings of fact. 

Although the training offers a sample court order that 

represents the type of factual findings required in a juvenile 

state court order, it does not clarify in layman’s terms 

what qualifies as a “specific finding of fact.” As a result, 

adjudicators have issued requests for exhaustive factual 

findings instead of focusing on verifying that a state court 

has made the requisite SIJ findings. 

328 See generally Ombudsman’s Annual Report 2014, pp. 13-15.

The 2015 Perez-Olano Settlement. In 2014, Plaintiffs in the 

Perez-Olano class action moved for class-wide enforcement 

of the terms of the settlement due to ongoing reports and 

concerns of violations of the terms of the 2005 settlement 

agreement.329 As a result of subsequent settlement of 

that motion,330 USCIS has recently agreed that it will 

retroactively and proactively adhere to important statutory 

protections for children at risk of aging out after they have 

been the subject of a valid state court dependency order.331

329 See generally The Center for Human Rights and Constitutional Law 

Foundation Webpage; http://immigrantchildren.org/Perez_Olano_Case.html

(accessed Mar. 10, 2015). “For the first two and one-half years following 

approval of the Settlement ... the agency regularly granted class members SIJ 

benefits even if they were no longer subjects of valid dependency orders at 

the time they filed Form I-360 SIJ applications provided they were under 21. 

Recently, however, CIS changed course; the agency now demands that class 

members be both under 21 years of age and the subject of valid dependency 

orders at the time they apply for SIJ benefits.” 330 Perez-Olano, et al. v. Holder, et al., Order Approving Stipulation Re: 

Motion to Enforce of Settlement, Case No. CV 05-3604 (C.D. Cal.) (Mar. 

27, 2015), http://www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20

Settlement%20Notices/PerezOlanoOrder.pdf. 331 USCIS Press Release, “Settlement Agreement in Perez-Olano, et al. v. Holder, 

et al., Case No. CV 05-3604, in U.S. District Court for the Central District of 

California,” http://www.uscis.gov/laws/legal-settlement-notices/settlementagreement-perez-olano-et-al-v-holder-et-al-case-no-cv-05-3604-us-districtcourt-central-district-california (Apr. 27, 2015) (accessed May 28, 2015).

Ongoing Concerns

The Ombudsman continues to find inconsistencies in 

the adjudication of SIJ petitions, the application of legal 

principles, and the factual evaluations that are undertaken 

under USCIS’ consent authority.

Inconsistencies in the application of USCIS’ consent 

function. In many cases, adjudicators continue to seek 

evidence underlying state court dependency orders, 

apparently applying the pre-2008 analytical tools that were 

used to understand and apply “express consent,” despite 

changes in the TVPRA amendments that reformed this 

requirement. In the years since the TVPRA amended SIJ 

requirements, it appears that the notion of USCIS “consent” 

to the grant has grown increasingly complex. While RFEs 

and Notices of Intent to Deny (NOIDs) often state that 

USCIS is not reviewing the state court process, the practical 

effect is a de novo review of the state court’s assessment 

pertaining to the abuse, neglect, or abandonment of the 

child. Congress, through statute, has removed from USCIS 

the burdens of determining a child’s best interests; whether 

a child has been abused, abandoned, or neglected; and 

whether reunification with one of more parents is viable. 

Yet, in its adjudications, USCIS has continued to assess 

those findings, and has even gone a step further to assess 

whether the court exercised its jurisdiction in accordance 

with state law. 

57
58 | 

Consent is not defined in statute, but USCIS, through 

policy, has determined that it means making sure the 

petition is bona fide.332 Language often included in RFEs 

and NOIDs explains that this entails making sure that 

immigration benefits were not the primary purpose for 

pursuing a state court order.333 In cases the Ombudsman 

has reviewed, USCIS looks to whether a state court made 

an “informed decision,” properly exercised its jurisdiction 

as a juvenile court, acted “in accordance with state law,” or 

had a “factual basis” for its findings. 

332 USCIS Memorandum, HQOPS 70/8.5 “Trafficking Victims Protection 

Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions” 

(Mar. 24, 2009); http://www.uscis.gov/sites/default/files/USCIS/Laws/

Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf (accessed Jun. 

1, 2015)(“[T]he consent determination ... is an acknowledgement that the 

request for SIJ classification is bona fide.”) 333 USCIS Interoffice Memorandum, “Memorandum #3 – Field Guidance 

on Special Immigrant Juvenile Status Petitions” (May 27, 2004); http://

www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_

Files_Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf

(accessed May 27, 2015). “Express consent means that the Secretary ... has 

“determine[d] that neither the dependency order nor the administrative or 

judicial determination of the alien’s best interest was sought primarily for the 

purpose of obtaining the status of an alien lawfully admitted for permanent 

residence.” USCIS Memorandum, HQOPS 70/8.5 “Trafficking Victims 

Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status 

Provisions” (Mar. 24, 2009). (“The consent determination by the Secretary 

... is an acknowledgement that the request for SIJ classification is bona fide. 

This means that the SIJ benefit was not ‘sought primarily for the purpose of 

obtaining the status of an alien lawfully admitted for permanent residence, 

rather than for the purpose of obtaining relief from abuse or neglect or 

abandonment’” (citing H.R. Rep. No. 105-405).)

Processing times. The statute requires that USCIS 

complete SIJ adjudications within 180 days of filing.334 

The Ombudsman has received an increasing number of 

requests for assistance for SIJ cases that remain pending 

beyond this designated timeframe. It is possible that the 

recent Perez-Olano stipulation will address some of these 

delays, but at the expense of further taxing resources as 

USCIS reopens and prioritizes previously denied cases. 

334 TVPRA § 235(d)(2).

Interviewing practices that are not age-appropriate. 

Through stakeholder engagements and requests for 

assistance, the Ombudsman has been made aware that some 

adjudicators in field offices have engaged in concerning 

interviewing practices. These include reliance on Forms 

I-213, Record of Deportable/Inadmissible Alien to question 

credibility,335 prolonged interrogation-style interviewing, 

and questioning petitioners on details about family 

members and abuse, abandonment, or neglect.

335 The Record of Deportable/Inadmissible Alien (Form I-213) is a form 

that is completed by CBP or ICE officials at the time a foreign national 

is apprehended. 

Inconsistencies between interview statements and 

information on the Form I-213 have been treated as fraud 

indicators and have yielded RFEs, NOIDs, and denials 

in SIJ applications. RFEs should only be issued when a 

petitioner fails to demonstrate “it is more likely than not 

that each of the required elements has been met.”336 This 

preponderance of the evidence standard is generally met 

when court orders reflect findings on all of the SIJ-required 

elements. An RFE is only proper if a statement entered 

into a Form I-213 overcomes the standard of proof that is 

met via a complete state court order. Interviews have also 

reportedly increased in duration. Stakeholders report that 

interviews were previously around 20 minutes in duration 

and now typically exceed an hour.

336 USCIS Policy Memorandum PM-602-0085, “Requests for Evidence and 

Notices of Intent to Deny” (Jun. 3, 2013); http://www.uscis.gov/sites/default/

files/USCIS/Laws/Memoranda/2013/June%202013/Requests%20for%20

Evidence%20(Final).pdf (accessed Jun. 11, 2015).

While USCIS officials have referenced the rising number of 

unaccompanied children crossing the border as a possible 

reason for this heightened scrutiny in the interview, it is not 

clear why USCIS would depart from interview practices 

used for other forms of relief. In asylum interviews, 

another context where a minor is interviewed as a principal 

applicant for protective benefits, officers are encouraged to 

regard applicants as children first and applicants second. 

Key guidelines from the Asylum Officers’ Basic Training 

Course were incorporated into 2014 SIJ Training and should 

be guiding interview practices. Of particular importance 

is guidance that an “officer may encounter gaps or 

inconsistencies in the child’s testimony ... [t]he child may be 

unable to present testimony concerning every fact in support 

of the claim, not because of a lack of credibility, but owing to 

age, gender, cultural background, or other circumstances.”337

337 Guidelines for Children’s Asylum Claims, USCIS Asylum Officer Basic 

Training Course (Sept. 1, 2009), at 33. In these training materials, USCIS 

acknowledges eight factors that influence a child’s development and five 

factors that accelerate or stunt child development. 

Conclusion

In the coming weeks, the Ombudsman intends to issue 

formal recommendations that USCIS: (1) centralize SIJ 

adjudication to improve the quality and consistency of 

decisions;338 and (2) issue updated regulations to clarify 

policy guidance and the limitations of USCIS’ consent 

338 As this Report was being finalized, the Ombudsman has learned that 

USCIS intends to centralize SIJ adjudications. However, the Ombudsman 

remains concerned that the location for this adjudication be provided with 

the appropriate tools and techniques, including the correct legal standards 

of review of the petition and the underlying principles associated with this 

vulnerable category.

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authority. These steps would substantially improve 

adjudications and end the agency’s current practice of 

seeking evidence underlying state court dependency orders. 

The Affirmative Asylum Backlog

Responsible USCIS Office: Refugee, Asylum and 

International Operations Directorate

A substantial backlog of affirmative asylum applications 

pending before USCIS has led to lengthy case processing 

times for tens of thousands of asylum seekers.339 Spikes in 

requests for reasonable and credible fear determinations, 

which have required the agency to redirect resources away 

from affirmative asylum adjudications, along with an uptick 

in new affirmative asylum filings, are largely responsible 

for the backlog and processing delays. Although USCIS 

has taken various measures to address these pending 

asylum cases, such as hiring additional staff, modifying 

scheduling priorities, and introducing new efficiencies into 

credible and reasonable fear adjudications, the backlog 

continues to mount.

339 USCIS Webpage, “Asylum Office Workload” (Jan. 28, 2015); http://www.

uscis.gov/sites/default/files/USCIS/Outreach/PED-AffirmativeAsylum-OctNov-Dec2014.pdf (accessed Mar. 9, 2015). 

Background

Over the past 4 years, USCIS’ backlog of affirmative 

asylum cases has swelled. See Figure 4.1, Affirmative 

Asylum Filings.340 At the end of FY 2011, 9,274 affirmative 

asylum cases were pending before USCIS.341 By the end of 

December 2014, that figure reached 73,103—an increase of 

over 700 percent.342 Over the course of this period, there has 

been a sharp increase in: (1) credible and reasonable fear 

claims, (2) affirmative asylum applications, and (3) asylum 

applications from Unaccompanied Alien Children in removal 

proceedings.343

340 Information provided by USCIS (Apr. 28, 2014); USCIS Webpage, “Asylum 

Office Workload” (Jan. 28, 2015); http://www.uscis.gov/sites/default/files/

USCIS/Outreach/PED-AffirmativeAsylum-Oct-Nov-Dec2014.pdf (accessed 

Mar. 9, 2015); USCIS Asylum Quarterly Stakeholder Meeting Notes (Nov. 14, 

2014), p.1. 341 Information provided by USCIS (Apr. 28, 2014). 342 USCIS Webpage, “Asylum Office Workload” (Jan. 28, 2015); http://www.

uscis.gov/sites/default/files/USCIS/Outreach/PED-AffirmativeAsylum-OctNov-Dec2014.pdf (accessed Mar. 9, 2015). 343 Information provided by USCIS (Jan. 20, 2015).

Credible and Reasonable Fear Claims. A surge in credible 

and reasonable fear claims since FY 2012 has strained 

the resources of the Refugee, Asylum, and International 

Operations (RAIO) Directorate’s Asylum Division. 

Credible fear cases arise when certain foreign nationals 

who are subject to expedited removal claim a fear of 

returning to their home countries.344 Reasonable fear 

cases arise when particular foreign nationals who illegally 

re-entered the United States following a prior order of 

removal, or who have been convicted of an aggravated 

felony and are subject to administrative removal from the 

United States, similarly express a fear of return.345 USCIS 

Asylum Officers adjudicate credible and reasonable fear 

claims to determine whether the applicants qualify for the 

opportunity to seek relief before an Immigration Judge.346 

Since many of these individuals are detained, USCIS 

prioritizes their cases.

344 Illegal Immigration Reform & Immigrant Responsibility Act of 1996, Pub. L. 

No. 104—208, 110 Stat. 3009 (1996)—546; see also INA § 235(b)(1)(A) and 

8 C.F.R. § 235.3. 345 INA §§ 237(a)(2)(A)(iii) and 241(a)(5). 346 INA §§ 235(b)(1)(B)(ii) and (v); see also 8 C.F.R. §§ 208.31(e) and 208.16.

In FY 2011, USCIS’ credible fear receipts totaled 11,337.347 

In FY 2014, the number of those receipts had nearly 

quintupled, reaching 51,001.348 While USCIS received 3,290 

347 USCIS Webpage, “Credible Fear Nationality Report” (Apr. 

11, 2014); http://www.uscis.gov/sites/default/files/USCIS/

Outreach/Notes%20from%20Previous%20Engagements/

AdditionalStatisticRequestedApril2014AsylumStakeholderEngagement.pdf

(accessed Mar. 9, 2015). 348 USCIS Webpage, “Credible Fear Workload Report” (Oct. 28, 2014); 

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20

National%20Engagements/PED_Credible_Fear_and_Reasonable_Fear_

FY14_Q4.pdf (accessed Mar. 9, 2015). 

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reasonable fear claims in FY 2011,349 the agency took in 9,084 

such claims in 2014.350 Various factors have contributed to 

this rapid rise in credible and reasonable fear submissions, 

including widespread crime and violence in Central America, 

where a majority of the applicants originate.351

349 USCIS Webpage, “Reasonable Fear Nationality Report” (Apr. 

11, 2014); http://www.uscis.gov/sites/default/files/USCIS/

Outreach/Notes%20from%20Previous%20Engagements/

AdditionalStatisticRequestedApril2014AsylumStakeholderEngagement.pdf

(accessed Mar. 9, 2015). 350 USCIS Webpage, “Reasonable Fear Workload Report” (Oct. 28, 2014); 

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20

National%20Engagements/PED_Credible_Fear_and_Reasonable_Fear_

FY14_Q4.pdf (accessed Mar. 9, 2015). 351 See U.S. Government Accountability Office Report, “Central America: 

Information on Migration of Unaccompanied Children from El Salvador, 

Guatemala, and Honduras” GAO-15-362 (Feb. 27, 2015); http://www.gao.gov/

products/GAO-15-362 (accessed Mar. 4, 2015).

These substantial increases demand considerable USCIS 

personnel and resources. For example, many Asylum 

Offices now send officers to various detention facilities 

around the nation to conduct credible and reasonable fear 

interviews. Such assignments deplete resources previously 

dedicated to affirmative asylum applications.

New Affirmative Asylum Applications. At the same time 

that the high volume of credible and reasonable fear 

claims has stretched resources for adjudicating existing 

affirmative asylum filings, the rate of new affirmative 

asylum filings has grown. In FY 2011, asylum seekers filed 

35,067 affirmative asylum applications with USCIS.352 In 

FY 2014, asylum seekers filed 56,912 affirmative asylum 

applications, a 62 percent increase.353 Even viewed in 

isolation, this trend in affirmative asylum receipts poses 

challenges to timely case processing.

352 Information provided by USCIS (Apr. 28, 2014). 353 USCIS Asylum Quarterly Stakeholder Meeting Notes (Nov. 14, 2014), p.1.

Unaccompanied Alien Children. Asylum applications 

from Unaccompanied Alien Children (UACs)—referring to 

certain minors in removal proceedings who are eligible to 

file with USCIS under the TVPRA—have also contributed 

to the affirmative asylum backlog.354 At the end of FY 

2013, 868 asylum cases filed by individuals under the 

TVPRA were pending before USCIS.355 One year later, 

354 See USCIS Policy Memorandum, “Updated Procedures for Determination of 

Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien 

Children” (May 28, 2013); http://www.uscis.gov/sites/default/files/USCIS/

Humanitarian/Refugees%20%26%20Asylum/Asylum/Minor%20Children%20

Applying%20for%20Asylum%20By%20Themselves/determ-juris-asylumapp-file-unaccompanied-alien-children.pdf (accessed Mar. 9, 2015). 355 USCIS Webpage, “Refugees, Asylum and Parole System MPA and PRL 

Report 10/01/13—9/30/14” (Nov. 11, 2014); http://www.uscis.gov/sites/

default/files/USCIS/Outreach/Upcoming%20National%20Engagements/

PED_Minors_FY14_11_11_14_2.pdf (accessed Mar. 9, 2015). 

that number totaled 2,986.356 By the end of the first quarter 

of FY 2014 (December 31, 2014), the figure had grown 

to 4,221.357 USCIS prioritizes interviews of new TVPRA 

asylum applicants over backlogged adult applicants.358

356 Id. 357 USCIS Webpage, “Refugees, Asylum and Parole System MPA and PRL Report 

10/01/14—12/31/14” (Jan. 7, 2015); http://www.uscis.gov/sites/default/files/

USCIS/Outreach/PED-MinorsFY15-Q1.pdf (accessed Mar. 9, 2015). 358 USCIS Webpage, “USCIS Processing of Asylum Cases” (date not provided); 

http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20

%26%20Asylum/Asylum/USCIS_Reponds_to_Humanitarian_Caseload.pdf

(accessed Mar. 9, 2015).

Impacts of Backlog

The trends described above have helped create and perpetuate 

an affirmative asylum backlog that imposes far-reaching 

psychological and practical consequences on asylum seekers 

in the United States. USCIS’ asylum interview scheduling 

priorities dictate which applicants sustain the impact of those 

effects. Prior to December 26, 2014, the Asylum Division 

scheduled interviews on a “last in, first out” basis under 

which the agency prioritized newly-filed applications over 

long-pending ones, in significant part to deter frivolous 

applications filed with the aim of receiving employment 

authorization.359 Thus, while older filers continued to wait 

for asylum interviews, recent filers moved more rapidly 

through the adjudication process. This lengthy delay for 

backlogged applicants has brought anxiety, uncertainty, and 

a host of practical challenges to many thousands of asylum 

seekers. As discussed below, the Asylum Division has now 

begun scheduling interviews on a “first in, first out” basis.360

359 Information provided by USCIS (Jan. 20, 2015). 360 USCIS Webpage, “USCIS Processing of Asylum Cases;” http://www.uscis.gov/

sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/

USCIS_Reponds_to_Humanitarian_Caseload.pdf (accessed Mar. 9, 2015).

Data in Action

From October 1, 2014 through March 5, 2015, 68 

percent of the requests for case assistance received by the 

Ombudsman that related to affirmative asylum applications 

concerned applicants who had not yet been scheduled an 

asylum interview. See Figure 4.2, Affirmative Asylum 

Requests for Case Assistance Received. The next largest 

category of submissions—those involving affirmative 

asylum applicants who had completed interviews but had 

not yet received a final decision in their cases—comprised a 

quarter of total requests.

In their requests for case assistance, backlogged applicants 

frequently noted feelings of anxiety and frustration in the 

face of long processing times. Often they described a sense 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

of instability and uncertainty hanging over their lives in the 

United States.

Many applicants also expressed fear for the safety and 

well-being of family members who remained overseas and 

on whose behalf the applicants could petition only upon the 

successful outcome of their pending cases. One individual 

requesting assistance from the Ombudsman stated, “[I]’m a 

father of two girls ... we have not seen each other since ... 

2012 ... and I have not seen my wife since that time also, I 

came here because am not safe there and they are not safe 

there .... I can’t find words to describe what does it mean to 

be away from my family living here safe and they are there 

in danger.”

Ombudsman data also indicate the length of the wait times 

experienced by backlogged applicants. See Figure 4.3, 

Affirmative Asylum Interview Wait Times Based on Requests 

for Case Assistance Submitted to the Ombudsman. Of the 

applicants submitting requests for case assistance who had 

not yet received interviews, only one had been waiting for 

an interview less than 6 months after filing an affirmative 

asylum application. Approximately 25 percent of these 

applicants, on the other hand, had been waiting over 2 years 

to be interviewed. 

USCIS Response and Ombudsman Assistance

In response to many of these inquiries, the Ombudsman 

directly contacted Asylum Offices concerning pending 

interviews. The Ombudsman also met with officials from the 

Asylum Division, at both Headquarters and at local Asylum 

Offices around the country, to discuss the backlog and 

potential ameliorative measures.

The Asylum Division has taken the following steps, 

among other actions to address the backlog: (1) making 

new hires; (2) establishing new scheduling priorities; 

and (3) introducing new credible and reasonable fear 

adjudication efficiencies.

New Hires. USCIS has substantially increased hiring in 

recent years to address the rise in credible and reasonable 

fear claims and affirmative asylum applications. USCIS 

scaled up its Asylum Officer corps from 203 officers 

in 2013 to 350 officers in January 2015.361 Further, the 

Asylum Division obtained authorization to elevate its total 

number of Asylum Officer positions to 448.362

361 Information provided by USCIS (Jan. 20, 2015). 362 USCIS Webpage, “USCIS Processing of Asylum Cases;” http://www.uscis.gov/

sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/

USCIS_Reponds_to_Humanitarian_Caseload.pdf (accessed Mar. 9, 2015).

However, USCIS acknowledges a high turnover rate among 

Asylum Officers.363 One Asylum Office noted that, on 

average, its Asylum Officers serve in the position for only 

14 months.364 Thus, even as newly authorized officers are 

hired and trained, the departure of more seasoned officers 

compromises USCIS’ capacity to efficiently meet its 

caseload and reduce the affirmative asylum backlog.

363 Information provided by USCIS (Jan. 20, 2015). 364 Information provided by USCIS (Jan. 27, 2015).

Scheduling Priorities. On December 26, 2014, the Asylum 

Division implemented new affirmative asylum scheduling 

priorities as follows: 

M First Priority: Rescheduled interviews

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62 | ANNUAL REPORT TO CONGRESS JUNE 2015

M Second Priority: Applications filed by children

M Third Priority: All other pending affirmative asylum 

applications in the order in which they were received365

365 USCIS Webpage, “USCIS Processing of Asylum Cases;” http://www.uscis.

gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/

Asylum/USCIS_Reponds_to_Humanitarian_Caseload.pdf (accessed 

Mar. 9, 2015). 

These new scheduling priorities replace the “last in, 

first out” model with a “first in, first out” approach that 

targets the longest-pending applications. While this 

comes as welcome news to many applicants, new filers 

could now face the same prospect of lengthy processing 

times previously endured by older filers. USCIS officials, 

meanwhile, remain concerned that this new scheduling 

approach could attract frivolous applications submitted for 

the purpose of obtaining employment authorization amidst 

the system’s lengthy wait times. 

In May 2015, USCIS indicated that it would begin 

publishing estimated wait times for asylum interviews 

that would provide asylum seekers who had filed asylum 

applications but not yet received asylum interviews with an 

approximate timetable—roughly a 2 to 3-month range—

within which those interviews would take place.366

366 See USCIS Asylum Quarterly Stakeholder Meeting Notes (May 5, 2015), p. 5.

Credible and Reasonable Fear Adjudication Efficiencies. 

USCIS has implemented a range of policy and procedural 

changes in the credible and reasonable fear contexts that 

have had the effect of shortening case processing times. 

For example, USCIS increasingly relies on telephonic and 

videoconference interviews in these adjudications. In FY 

2014, USCIS conducted over 59 percent of credible fear 

interviews and 25 percent of reasonable fear interviews 

via telephone or videoconference.367 In May 2014, USCIS 

altered the standard note-taking format for reasonable 

fear interviews from a “Sworn Statement” to a “Q and A” 

model, under which the interviewing Asylum Officer may 

take more streamlined notes and need not review those 

notes in their entirety with the applicant.368 The following 

month, the agency announced an update in its credible and 

reasonable fear quality assurance review policy, resulting 

in substantially less Headquarters review of credible and 

367 Information provided by USCIS (Jan. 20, 2015). 368 USCIS Policy Memorandum, “Updated Guidance on Reasonable Fear NoteTaking” (May 9, 2014); http://www.uscis.gov/sites/default/files/USCIS/

Outreach/Notes%20from%20Previous%20Engagements/2014/MEMO_

Updated_Guidance_on_Reasonable_Fear_Note_Taking.pdf (accessed 

Mar. 9, 2015).

reasonable fear decisions rendered by the field.369 All 

of these shifts have made credible and reasonable fear 

adjudications more efficient, freeing personnel to target 

a larger volume of cases, including applications in the 

affirmative asylum backlog. However, stakeholders have 

expressed concern that measures such as the enhanced use 

of remote interview technologies impair Asylum Officers’ 

ability to determine credibility and otherwise erode 

adjudication quality.

369 USCIS Policy Memorandum, “Changes to Credible Fear and Reasonable Fear 

Cases Requiring Quality Assurance Review” (Jun. 11, 2014); http://www.

uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20

Engagements/2014/MEMO_Changes_to_CF_and_RF_Cases_Requiring_QA_

Review_6.11.14.pdf (accessed Mar. 9, 2015).

The Ombudsman has also disseminated information to 

stakeholders regarding two means by which affirmative 

asylum applicants may potentially accelerate their 

interview dates: (1) interview expedite requests; and (2) 

interview “Short Lists.” First, each Asylum Office accepts 

and evaluates requests for expedited interviews, granting or 

denying those requests based on humanitarian factors, such 

as documented medical exigencies, as well as the Asylum 

Office’s available resources.370 Depending on the Asylum 

Office, applicants may make these requests in-person or 

via email. Some Asylum Offices also maintain Short Lists, 

containing the names of backlogged applicants who have 

volunteered to make themselves available for interviews 

scheduled on short notice due to unforeseen interview 

cancellations or other developments.371 Backlogged 

applicants may wish to contact their local Asylum Office to 

inquire about the availability of such a list.

370 See USCIS Asylum Quarterly Stakeholder Meeting Notes (Aug. 11, 2014), 

p. 1. 371 Id.

Conclusion

The asylum program data presented in this section 

demonstrate the costs of the affirmative asylum backlog. 

Though USCIS has undertaken an array of initiatives 

to mitigate these impacts and shorten delays, inventory 

levels continue to grow by thousands of applications each 

month.372 The Ombudsman has requested that USCIS 

provide information on any projections of when, and to 

what extent, the backlog will be reduced. The Ombudsman 

will continue to monitor processing times, engage with 

USCIS and stakeholders, and actively explore measures for 

bringing relief to waiting asylum seekers.

372 USCIS Webpage, “Asylum Office Workload” (Jan. 28, 2015); http://www.

uscis.gov/sites/default/files/USCIS/Outreach/PED-AffirmativeAsylum-OctNov-Dec2014.pdf (accessed Mar. 9, 2015).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

Immigration Benefits for 

Victims of Domestic Violence, 

Trafficking, and Other 

Violent Crimes

Victims of domestic violence, human trafficking, and other 

specified crimes may seek humanitarian immigration relief. 

Specifically, these programs include U nonimmigrant 

status, T nonimmigrant status, and self-petitioning for 

adjustment of status under VAWA.373 The Ombudsman 

continues to monitor processing times, quality of RFE and 

adjudications, and outreach to this vulnerable population.374

373 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322; see also Victims of Trafficking and Violence Protection Act of 2000, Pub. 

L. No. 106-386; see also TVPRA. 374 See Ombudsman’s Annual Report 2014, p. 34.

Background

U Visas. U visas are available to individuals who have 

suffered substantial physical or mental abuse as a result 

of having been a victim of qualifying criminal activity, 

who possess information concerning criminal activity 

and who have been, are being, or are likely to be, helpful 

in the investigation or prosecution of criminal activity.375 

U visas are statutorily capped at 10,000 per fiscal year,

not including derivatives.376 In December 2014, USCIS 

announced that it had approved the statutory limit of 

10,000 U visas for the sixth straight fiscal year.377 USCIS 

continued to review petitions for eligibility and will 

resume issuing decisions on October 1, 2015 (the first 

day of FY 2016).378 Applicants who have been approved 

conditionally can seek to renew their grants of deferred 

action and employment authorization until the next year’s 

allotment of visas becomes available. Since the program 

was implemented in 2008, more than 116,471 victims and 

their family members have received U visas.379

375 INA § 101(a)(15)(U). 376 Victims of Trafficking and Violence Protection Act of 2000 § 1513(c)(2)(A), 

Pub. L. No. 106-386. See also 8 C.F.R. § 214.14(d)(1). 377 See USCIS Press Release, “USCIS Approves 10,000 U Visas for 5th Straight 

Fiscal Year” (Dec. 11, 2013); http://www.uscis.gov/news/alerts/uscisapproves-10000-u-visas-5th-straight-fiscal-year (accessed Apr. 24, 2015). 378 See USCIS Press Release, “USCIS Approves 10,000 U Visas for 6th Straight 

Fiscal Year” (Dec. 11, 2014); http://www.uscis.gov/news/uscis-approves10000-u-visas-6th-straight-fiscal-year (accessed Apr. 24, 2015). 379 Id.

T Visas. T visas are available to victims of severe forms of 

trafficking who comply with requests for assistance from law 

enforcement in the investigation or prosecution of human 

trafficking cases.380 T visa applications and adjustments of 

status for T visa holders have not come close to reaching the 

statutory cap of 5,000 per year;381 less than 1,000 T visas 

have been granted to trafficking survivors each year since the 

enactment of TVPRA.382 Stakeholders have shared with the 

Ombudsman that many trafficking victims have difficulty 

establishing eligibility for the strict interpretation of the legal 

definition of trafficking victims. In particular, stakeholders 

seek to have the interpretation of INA section 101(a)(15)

(T)(i) expanded by policy memorandum or regulation to 

clarify that “in the [United States] on account of trafficking” 

includes persons who can be in the United States on account 

of trafficking because they escaped a severe form of 

trafficking in a different country.

380 INA § 101(a)(15)(T). 381 INA § 214(o) (2008); 8 C.F.R. § 245.23(l). 382 Information provided by USCIS (Apr. 21, 2015).

VAWA Self-Petitioning Immigrants. Recognizing that 

immigrant victims of domestic violence may remain in an 

abusive relationship because immigration status is often 

tied to the abuser, Congress passed the Violence Against 

Women Act in 1994.383 VAWA created a self-petitioning 

process that allows victims to submit their own petitions 

for permanent residence without the abuser’s knowledge 

383 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322. See also Victims of Trafficking and Violence Protection Act of 2000, 

Pub. L. No. 106-386; Trafficking Victims Protection Reauthorization Act of 

2003, Pub. L. No. 108-193.

63
64 | 

or consent.384 Those eligible for VAWA relief include 

the current or former abused spouse of a U.S. citizen or 

Lawful Permanent Resident, the abused child of a U.S. 

citizen or Lawful Permanent Resident, and the abused 

parent of a U.S. citizen.385

384 Violent Crime Control and Law Enforcement Act of 1994, § 40701, Pub. L. 

No. 103-322. See also Victims of Trafficking and Violence Protection Act of 

2000, Pub. L. No. 106-386; Trafficking Victims Protection Reauthorization 

Act of 2003, Pub. L. No. 108-193. 385 INA §§ 204(a)(1)(A)(iii), (vii) and (B)(ii), (iii); 8 C.F.R. §§ 204.2(c), (e).

Ongoing Concerns

Processing Times. As of April 2015, posted processing 

times were 8 months for U nonimmigrant status petitions 

(or pre-approvals when the U visa cap has been reached), 

5 months for VAWA self-petitions, and 4 months for T 

nonimmigrant status applications.386 The USCIS VAWA 

Unit at the Vermont Service Center, which adjudicates 

U, T, and VAWA applications/petitions, will need to be 

adequately resourced to ensure that USCIS meets its 

processing time goal of 6 months for all applications.

386 USCIS Webpage, “USCIS Processing Times” (Apr. 13, 2015); https://egov.

uscis.gov/cris/processTimesDisplayInit.do (accessed Apr. 24, 2015).

Stakeholders have expressed confusion regarding the 

reporting of processing times for U petitions in particular. 

The VAWA Unit adjudicates filings on a “first in, first out” 

basis; therefore, a petitioner’s place on the waitlist will be 

determined by receipt date of the initial U petition, and not 

the date of the conditional approval. The USCIS website 

states that petitions filed on or before March 4, 2014 are 

being processed.387 The date of the last petition approved 

under the FY 2014 U visa cap and does not accurately 

reflect the processing time for conditional U status grants. 

387 Id.

VAWA Employment Authorization for Nonimmigrant 

Victims. Section 106 of the INA, enacted on January 5, 

2006, provides for employment authorization for abused 

spouses of certain nonimmigrants.388 However, USCIS 

has not implemented this provision. USCIS published on 

December 12, 2012 a draft Policy Memorandum, titled 

Eligibility for Employment Authorization upon Approval 

of a Violence Against Women Act (VAWA) Self-Petition; 

and Eligibility for Employment Authorization for Battered 

Spouses of Certain Nonimmigrants, but this draft policy 

has yet to be finalized.389 The Ombudsman continues to 

receive case assistance requests from potentially eligible 

applicants who are victims and who may not be able to 

escape abuse because of the delay in implementation of 

INA section 106.

388 Section 816 of the Violence Against Women and Department of Justice 

Reauthorization Act of 2005 (VAWA 2005), Pub. L. No. 109-162 (2006). 389 USCIS Draft Policy Memorandum, “Eligibility for Employment Authorization 

upon Approval of a Violence Against Women Act (VAWA) Self-Petition; and, 

Eligibility for Employment Authorization for Battered Spouses of Certain

Nonimmigrants” (Dec. 12, 2012); http://www.uscis.gov/sites/default/files/

USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20

for%20Comment/VAWA-Authorized-EADs-PM.pdf (accessed Apr. 24, 2015). 

This draft Policy Memorandum provides guidance on employment authorization 

eligibility for battered spouses of certain A, E, G, and H nonimmigrants.

U and T Visa Law Enforcement Certifications. Law 

enforcement certification of the crime and the victim’s 

helpfulness is required for U visas, but not for T visas or 

VAWA eligibility.390 While law enforcement certifications 

are one critical component in establishing an individual’s 

eligibility for these protections, the certification is only 

one of the pieces of evidence that USCIS considers. 

Stakeholders report to the Ombudsman that in some cases 

they continue to experience challenges in successfully 

securing law enforcement certifications, in particular, from 

law agencies at the state and local level. 

390 INA § 101(a)(15)(U)(i). See also USCIS Webpage, “Form I-918, Supplement 

B, U Nonimmigrant Status Certification” (Jan. 15, 2013); http://www.uscis.gov/

sites/default/files/files/form/i-918supb.pdf (accessed Apr. 24, 2015).

Over the past year, the USCIS Customer Service and 

Public Engagement Directorate has continued to engage 

with stakeholders. Specifically, it emphasized training 

for federal, state, and local law enforcement, to increase 

awareness of the T and U visa programs and to promote 

greater understanding among law enforcement of the 

purpose for certification and for the USCIS adjudicatory 

process. During FY 2014 and the first half of FY 2015 to 

date, USCIS hosted 20 national engagements on Us, Ts, and 

VAWA for 4,069 people.391 The Ombudsman is also leading 

the effort to update the DHS U Visa Law Enforcement 

391 Information provided by USCIS (Apr. 24, 2015).

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

Certification Resource Guide.392 This guide is available 

to law enforcement officials to support investigations 

and prosecutions involving immigrant victims of crime, 

and is being provided in response to requests for more 

guidance from law enforcement officials and domestic 

violence advocates alike. USCIS has a website dedicated to 

resources for law enforcement agencies, and a video on how 

to complete certifications required for the adjudication of 

these visas.393

392 DHS U Visa Resource Guide (Jul. 20, 2012); http://www.dhs.gov/u-visa-lawenforcement-certification-resource-guide (accessed Apr. 24, 2015). 393 See USCIS Webpage, “Blue Campaign: T and U Visa Benefit Certification” 

(Jun. 16, 2014); http://www.uscis.gov/videos/blue-campaign-t-and-u-visabenefit-certification (accessed Apr. 24, 2015). See also USCIS Webpage, 

“Information for Law Enforcement Agencies and Judges” (Aug. 25, 2014); 

http://www.uscis.gov/tools/resources/information-law-enforcement-agenciesand-judges (accessed May 19, 2015). 

Parole for U Conditional Grantees. Stakeholder 

organizations have raised concerns with DHS, USCIS, and 

the Ombudsman regarding individuals outside the United 

States who have approved U petitions and may be in 

vulnerable situations while awaiting visa availability.394 U 

principals and derivatives who receive conditional approval 

but are residing outside of the United States must wait 

until a visa is available to consular process and enter the 

United States.395 Since the U visa cap has been reached in 

each fiscal year since 2009, U petitioners deemed eligible 

are put on a waiting list. If they are in the United States, 

both the principals and derivatives receive deferred action 

and employment authorization.396 For those outside the 

United States, there is no corresponding relief except the 

possibility of humanitarian parole. Conditional grantees 

of the U visa program, who must wait for years outside of 

the United States for a U visa, may be subject to violence 

and harm in the country they are forced to reside in abroad. 

According to stakeholders, derivative conditional grantees 

seeking parole for humanitarian reasons from abroad are 

often minor children of the principal conditional grantee, 

which further supports the need for reunification. 

394 See Letter from ASISTA Immigration Assistance to Director Rodriguez 

(Oct. 23, 2014); http://www.asistahelp.org/documents/news/Parole_Policy_

Letter_10_58C53CA4523D9.pdf (accessed Apr. 25, 2015). 395 8 C.F.R. § 214.14(d)(2). 396 Id.

A principal U conditional grantee contacted the 

Ombudsman for assistance with the delay of his son’s 

derivative U petition. The son’s petition had been pending 

with the USCIS Vermont Service Center well past posted 

processing times; the case had been pending 18 months. 

The father was very concerned for the safety and wellbeing of his son due to the growing gang violence and 

unrest in his neighborhood in Central America. One day 

after a request for case assistance with the Ombudsman 

was filed, the derivative son was killed by a stray bullet 

from a gang fight. If parole had been available, this tragic 

outcome may have been avoided.

Parole is a benefit provided at the discretion of USCIS 

on a case-by-case basis to allow immigrants who would 

otherwise be inadmissible to enter the United States either 

for “urgent humanitarian reasons” or “significant public 

benefit.”397 Individuals residing outside of the United States 

may seek parole by filing Form I-131, Application for Travel 

Document; Form I-134, Affidavit of Support; and submitting 

a detailed explanation of the need for the parole, evidence 

of the circumstances, and the applicable $360 filing fee 

with USCIS.398

397 8 C.F.R. § 212.5(b) (2013). 398 USCIS Webpage, “Humanitarian Parole” (Oct. 10, 2014); http://www.uscis.

gov/humanitarian/humanitarian-parole (accessed Jan. 26, 2015).

USCIS’ Humanitarian Affairs Branch Office under the 

RAIO adjudicates parole requests for individuals outside 

the United States, including those from U conditional 

grantees. The Humanitarian Affairs Branch staff triages 

requests for humanitarian parole and attempts to provide 

immediate processing for individuals experiencing lifethreatening medical emergencies, or involving children 

under the age of 16 or individuals who are physically and/

or mentally challenged.399 Approximately 25 percent of 

humanitarian parole requests are approved.400

399 USCIS Webpage, “Humanitarian Parole Program” (Feb. 2011); http://www.

uscis.gov/sites/default/files/USCIS/Resources/Resources for Congress/

Humanitarian Parole Program.pdf (accessed Apr. 25, 2015). 400 USCIS “Humanitarian Parole Presentation;” http://www.uscis.gov/sites/

default/files/USCIS/Resources/Resources for Congress/Humanitarian Parole 

Program.pdf (accessed Apr. 25, 2015).

USCIS regulations explicitly provide that individuals 

residing outside of the United States may be eligible for 

parole while they wait for U visa availability.401 Parole has 

been used in a variety of situations, for example, placing 

orphaned Haitian children with their American adoptive 

401 8 C.F.R. § 214.14(d)(2) states, “USCIS will grant deferred action or parole to 

U-1 petitioners and qualifying family members while the U-1 petitioners are 

on the waiting list.”

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parents after the devastating 2010 earthquake,402 and 

the most recent Haitian Family Reunification Program, 

discussed later in this chapter. 

402 USCIS Press Release, “Secretary Napolitano Announces Humanitarian Parole 

Policy for Certain Haitian Orphans,” Jan. 18, 2010; http://www.dhs.gov/

news/2010/01/18/secretary-announces-humanitarian-parole-policy-certainhaitian-orphans (accessed May 20, 2015). 

The Ombudsman is reviewing options for USCIS to 

develop a parole program for U visa petitioners and 

derivatives residing abroad to enter the United States while 

waiting for their visas to be issued. A parole program 

would address the current inconsistent treatment of 

conditional grantees based on their location at the time of 

the grant, and ensure they are not exposed to violence and 

potential harm while waiting in their home countries. 

Conclusion

The U, T, and VAWA programs provide critical 

humanitarian immigration relief. They also support the 

effective investigation and prosecution of specified criminal 

activity. Ensuring a safe haven for those entitled to such 

relief but unable to take advantage of it due to visa limits 

and agency delays is within the agency’s own regulatory 

authority and should be pursued. The Ombudsman will 

consider issuing formal recommendations on parole for U 

visa grantees and their family members.

Fee Waiver Processing Issues

Responsible USCIS Offices: Office of Intake and 

Document Production, and Field Operations and 

Service Center Operations Directorates

USCIS’ Office of Intake and Document Production (OIDP), 

which supports both the Field Operations and Service 

Center Operations Directorates, administers the system 

of fee waivers for immigration applications and petitions. 

Fee waivers are critical to populations who cannot access 

immigration benefits because of their inability to afford 

the required fees, including elderly, indigent, or disabled 

applicants. This year’s Report summarizes ongoing 

problems experienced by individuals requesting fee waivers.

Background

In 2010, USCIS standardized and clarified fee waiver 

criteria and procedures through the development of Form 

I-912, Request for Fee Waiver and the accompanying 

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.

403 Prior to 2010, there was 

no standardized form for requesting a fee waiver, leading 

to stakeholder complaints that fee waiver handling was 

unpredictable and confusing.

403 USCIS Policy Memorandum, “Fee Waiver Guidelines as Established by 

the Final Rule of the USCIS Fee Schedule: Revisions to the Adjudicator’s 

Field Manual (AFM) Chapter 10.9, AFM Update AD11-26” (Mar. 13, 2011); 

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/

March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_

USCISFeeSchedule.pdf (accessed Apr. 23, 2015).

The current standards for fee waiver adjudications are 

encompassed in the Policy Memorandum, as well as in 

the instructions to Form I-912. Individuals may seek fee 

waivers for limited application types, and eligibility is 

based on any one of these grounds: (1) current receipt of 

a means-tested public benefit; (2) household income that 

is at or below 150 percent of the Federal Poverty Income 

Guidelines; or (3) financial hardship.404

404 USCIS Webpage, “Instructions for Request for Fee Waiver” (May 10, 2013); 

http://www.uscis.gov/sites/default/files/files/form/i-912instr.pdf (accessed Apr. 

23, 2015).

USCIS revised Form I-912 in May 2013,405 and published 

tips for filing fee waivers in January 2014.406 As discussed 

in the Ombudsman’s 2014 Annual Report, the changes to 

the instructions and Form I-912 altered the counting of 

household size to include certain non-related household 

members, a change that has been criticized by stakeholders, 

and that is not included in the Policy Memorandum.407 

In March 2015, USCIS published a notice of additional 

proposed revisions to Form I-912.408 The proposed 

revisions double the length of the fee waiver form from 

five pages to 10 pages. The tips for fee waivers contain 

useful information including an email to contact the USCIS 

lockboxes, where USCIS performs fee waiver adjudications. 

The lockboxsupport@dhs.gov email address is the only 

contact that the public has to raise questions directly with 

the agency about rejections or denials of fee waivers.

405 USCIS Webpage, “Forms Update” (May 2013); http://www.uscis.gov/formsupdates (accessed May 14, 2015). 406 USCIS Webpage, “Tips for Filing Form I-912, Request for Fee Waiver” (Jan. 

15, 2014); http://www.uscis.gov/forms/tips-filing-form-i-912-request-feewaiver (accessed Apr. 23, 2015). 407 Ombudsman’s Annual Report 2014, p. 54. 408 “Agency Information Collection Activities: Application for Fee Waivers and 

Exemption, Form I-912; Revision of a Currently Approved Collection,” .80 

Fed. Reg. 13880 (Mar. 17, 2015).

The Ombudsman raised fee waiver cases with OIDP in 

2014 and 2015, met USCIS personnel in pursuit of systemic 

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solutions, and held a series of stakeholder engagements 

to seek resolution of systemic fee waiver issues. At those 

meetings, USCIS stressed that the lockbox support email 

was the problem-solving mechanism that customers 

needed to use when a fee waiver was rejected or denied 

inappropriately. USCIS and the Ombudsman agreed that 

those with fee waiver inquiries should first seek review with 

USCIS via lockboxsupport@dhs.gov. If no satisfactory 

response is received in 5 business days, the fee waiver 

applicant may request assistance from the Ombudsman.

Ongoing Concerns

The Ombudsman received case inquiries on fee waivers 

during the reporting period that demonstrate continued 

issues with consistency of adjudications and processing 

of fee waivers. During a January 22, 2015 stakeholder 

teleconference on fee waivers, non-governmental groups 

and legal organizations that represent large numbers of fee 

waiver applicants in filings for Form N-400, Application 

for Naturalization and Form I-90, Application to Replace 

Permanent Resident Card presented detailed information 

about continuing problems with fee waiver rejections and 

denials. Stakeholders reported inconsistent adjudications; 

standardized, non-specific language in rejection notices; 

and failure to follow published eligibility criteria, including 

household counting and income standards. These problems 

caused long delays to access a benefit for which applicants 

are eligible to apply.

Pro se Applicants. In addition, stakeholders report 

concerns about the impact on pro se applicants who lack 

clear information about how to respond to standardized 

rejections and denials of fee waiver requests, since little 

information is provided on the notices. Communitybased organizations filing fee waiver requests reported 

concerns that unrepresented individuals may forego the 

benefit originally sought for lack of clear information on 

how to respond to multiple template rejection notices.409 

These organizations later expressed concerns that the 2015 

proposed revisions to Form I-912 will also pose a barrier 

to the pro se applicants, as the doubling of the length 

of the form and number of questions on the form vastly 

complicates its completion.410

409 Notes from Ombudsman Teleconference, “Stakeholder Fee Waiver” 

(Jan. 22, 2015). 410 Information provided by stakeholders regarding “Agency Information 

Collection Activities: Application for Fee Waivers and Exemption, Form 

I-912; Revision of a Currently Approved Collection,” 80 Fed. Reg. 13880 

(Mar. 17, 2015).

Template Rejection Notices. Stakeholders report that 

USCIS rejection notices in many qualified cases contain 

standardized language that fails to distinguish a particular 

deficiency. As a result, applicants and their attorneys spend 

many hours re-submitting such applications with nearly 

identical documentation to support eligibility. Attorneys 

report and the Ombudsman has observed through case 

assistance requests that USCIS often finally approves a fee 

waiver application upon the third or fourth re-submission, 

even when that re-submission has documentation identical 

to that contained in the first request.

In addition to delays and often the need for legal 

representation to re-submit a fee waiver application, the 

rejection notices undermine administrative efficiency. 

Results seem to indicate that USCIS adjudicators 

spend time reviewing and re-reviewing unnecessary 

re-submissions which could have been avoided if the 

application was thoroughly reviewed the first time, or if 

the applicant was provided with a notice of deficiency 

specifying the particular ground(s) of ineligibility or 

missing documentation.411

411 Notes from Ombudsman Teleconference, “Stakeholder Fee Waiver” (Jan. 22, 

2015). See also Information provided through requests for case assistance. 

Inconsistent Adjudications. Ombudsman case assistance 

requests illustrate how shifting standards that do not adhere 

to published guidance can result in inappropriate fee waiver 

denials. In one example, a fee waiver was denied for a 

disabled applicant who received a federal means-tested 

benefit, had no other income, and experienced financial 

hardship; in short, the individual appeared to be eligible 

under all three grounds of the Form I-912 instructions. 

Despite the supporting documentation, the applicant was 

denied without explanation.

In other cases, fee waiver applicants were denied on one 

basis, despite a showing of eligibility on another. For 

example, one applicant indicated eligibility on the basis of 

receiving a means-tested public benefit, and documentation 

of that benefit was included in the submission. However, 

the application was denied on a basis that he did not 

demonstrate eligibility under the requirement of a 

household income at or below the 150 percent of the 

Federal Poverty Income Guidelines. Another case was 

denied on the grounds that the applicant failed to show 

income below the 150 percent standard; however, USCIS 

did not address the applicant’s documentation showing 

receipt of Social Security Disability, a means-tested benefit.

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In some cases, applicants attempt to increase documentation 

with every re-submission, even when they lack specific 

information about what USCIS seeks, due to the generic 

rejection language. For one application, a recipient 

of a means-tested benefit filed for a fee waiver with 

documentation of the benefit, and was rejected twice without 

explanation or basis for the rejection. The applicant’s 

attorney then re-filed with a copy of the applicant’s tax return 

as supporting documentation. The tax return demonstrated 

that the applicant received no income. The USCIS Lockbox 

requested more information on the applicant’s particular 

circumstances that resulted in no income, and requested 

further documentation to verify that the applicant was 

receiving support from community organizations.

Stakeholders report that USCIS sometimes requests 

unnecessary and duplicative documentation, which also 

results in multiple submissions of the same fee waiver 

request.412 The Ombudsman received case assistance 

requests from three different applicants who submitted 

fee waiver requests based on income below the required 

amount and received overly burdensome RFEs. The 

applicants supplied their 2013 tax returns for fee waiver 

requests submitted in 2014. Nonetheless, in November 

2014, USCIS requested copies of these applicants’ 2014 

tax returns, which none of the applicants had yet prepared, 

as the tax year was not yet ended and the Federal filing 

deadline was 6 months in the future (April 15, 2015).413

412 Notes from Ombudsman Teleconference, “Stakeholder Fee Waiver” 

(Jan. 22, 2015). 413 Information provided through requests for case assistance.

Household Size and Income Calculations. Stakeholders 

report confusing and inconsistent instructions from USCIS 

on how to calculate income and how to count household 

size for determining the applicable income for the Federal 

Poverty Income Guidelines. In one case, a naturalization 

applicant seeking a fee waiver with documentation of 

his income below 150 percent of the Federal Poverty 

Income Guidelines received two rejections by the USCIS 

Lockbox without explanation, at which point he sought 

assistance from the Ombudsman. In another, where a 

minor applicant in foster care with no income filed his 

fee waiver with supporting documentation, the USCIS 

Lockbox returned the fee waiver stating that the applicant 

failed to file with the proper fee. In another fee waiver 

request where an applicant presented documentation that 

her monthly income was well below the 150 percent limit, 

a sole income of $920 per month, USCIS rejected the fee 

waiver as unqualified.414 The elderly applicant in this case 

was receiving a means-tested benefit, lived in a household 

of two which included herself and her profoundly disabled 

adult son, and suffered multiple rejections of her fee 

waiver application before submitting her inquiry through 

the Ombudsman. 

414 Information provided through requests for case assistance. This income 

level is below the published limit per year for a household of one on the 

Form I-912P, which provides the USCIS income guidelines for fee waiver 

calculation.

The counting of household size was affected by changes that 

USCIS made to the Form I-912 instructions in 2013, which 

now states that non-family members are to be included in 

counting household size in certain circumstances.415 The 

current form instructions contradict the guidance in USCIS’ 

Policy Memorandum, which does not require counting nonfamily members in household calculations.416 The Policy 

Memorandum limited the household count to include the 

applicant, spouse, any parents living with the applicant, 

and specific categories of adult sons or daughters living in 

the household.417 However, the instructions to the Form 

I-912, as revised in 2013, contain a different calculation 

of household size: in addition to family members in the 

household, the applicant is advised to count a person living 

with them who contributes 50 percent or more of applicant’s 

support. Fee waiver applicants must include the income 

documentation for these non-related individuals as well.418

415 USCIS Webpage, “Instructions for Request for Fee Waiver” (May 10, 2013); 

http://www.uscis.gov/sites/default/files/files/form/i-912instr.pdf (accessed Apr. 

23, 2015). The form began an extension process in August 2012, noting that 

“...USCIS will be evaluating whether to revise the Form I-912.” “Agency 

Information Collection Activities: Under Section 245A of the INA, Form 

I–687; Extension, Without Change, of a Currently Approved Collection,” 77 

Fed. Reg. 50521 (Aug. 21, 2012). On October 30, 2012, USCIS published 

the 30 day notice required under the Paperwork Reduction Act, stating they 

had received no comments in response to the 60-day notice published that 

August, and that they were revising the form. “Application for Fee Waivers 

and Exemptions,” 77 Fed. Reg. 65703 (Oct. 30, 2012). 416 USCIS Policy Memorandum, “Fee Waiver Guidelines as Established by 

the Final Rule of the USCIS Fee Schedule: Revisions to the Adjudicator’s 

Field Manual (AFM) Chapter 10.9, AFM Update AD11-26” (Mar. 13, 2011); 

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/

March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_

USCISFeeSchedule.pdf (accessed Apr. 23, 2015). 417 USCIS Policy Memorandum at p. 6, Step 2, “Fee Waiver Guidelines as 

Established by the Final Rule of the USCIS Fee Schedule: Revisions to the 

Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11-26”

(Mar. 13, 2011). 418 USCIS Webpage, “Instructions for Request for Fee Waiver” at p. 4, Step 

2, 3-5 (May 10, 2013); http://www.uscis.gov/sites/default/files/files/form/i912instr.pdf (accessed Apr. 23, 2015).

In contrast, on the Form I-864, Affidavit of Support

Under Section 213A of the Act, household size is defined 

differently in the regulations.419 Non-family members 

419 8 C.F.R. § 213a.1(1).

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are not included in household size for Form I-864 income 

calculations unless they are dependents on the tax return of 

the applicant, or if a person has previously been sponsored 

by an applicant. Consistency in counting household size 

across USCIS applications would improve clarity and assist 

USCIS customers. 

Even in areas where there is clarity, USCIS is not always 

consistent on how it determines the household size and 

income resulting in multiple rejections in fee waiver 

cases. Stakeholders report that spouses with no presence 

in the household of the fee waiver applicants, and even 

when living in separate countries, are requested to provide 

income documentation by USCIS. The Form I-912 

instructions require counting of spouses in the household 

size, and presentation of their income documentation, 

unless there is an order of legal separation.420 Legal 

separation orders from courts are not commonly obtained 

by many low-income foreign nationals. Additionally, 

stakeholders report that indigent applicants are often in 

transitional housing situations where inclusion of a nonrelated person’s income has no bearing on the individual’s 

access to that income and thus to their eligibility for a 

fee waiver.

420 USCIS Webpage, “Instructions for Request for Fee Waiver” (May 10, 2013); 

http://www.uscis.gov/sites/default/files/files/form/i-912instr.pdf (accessed Apr. 

23, 2015).

Conclusion

The large volume of vague and unsubstantiated fee 

waiver rejections prevents otherwise eligible low-income 

and vulnerable applicants from seeking benefits before 

USCIS. The mechanisms for the public to resolve fee 

waiver problems remain inadequate to address systemic 

problems. The public can sometimes resolve an individual 

case through repeated re-submissions, by contacting 

lockbox support, or by seeking assistance from an agency 

liaison, congressional offices, and the Ombudsman. But 

these methods are time-consuming, cause delay and 

confusion to the applicants, and can only resolve one 

case at a time. The Ombudsman urges USCIS to address 

systemic issues of rejections and inconsistent decisions 

on fee waiver criteria and to provide more responsiveness 

from the USCIS Lockbox for the public to resolve 

individual fee waiver case problems. Individuals may 

contact USCIS’ lockbox support email box to resolve a fee 

waiver issue, but stakeholders report delays of up to 30 

days for a response, and in some cases no response at all. 

Public engagement on the systemic issues stakeholders 

experience would help USCIS identify ongoing issues and 

possible ameliorative actions to improve administration of 

the fee waiver program.

The Ombudsman has raised these same issues with fee 

waivers in prior Annual Reports. In response to the 2013 

Annual Report, USCIS stated, “just over 98 percent 

of decisions reviewed as part of the quality assurance 

program were found to be accurate, and has improved 

to 98.82 percent in FY 2013.”421 However, the issues of 

unfair rejections and denials have persisted. USCIS also 

committed to reviewing decision notices for the need to 

provide more specific information and hosting a national 

stakeholder engagement.422 Yet, generic notices of rejection 

and denial continue.

421 DHS Webpage, “USCIS Response to the Citizenship and Immigration 

Services Ombudsman’s (CISOMB) 2013 Annual Report to Congress” (Nov. 

12, 2014); http://www.dhs.gov/publication/2013-uscis-response (accessed 

May 8, 2015). 422 Id.

Humanitarian Reinstatement 

for Surviving Relatives Under 

Immigration and Nationality 

Act Section 204(l) and the 

Regulations 

Responsible USCIS Office: Service Center 

Operations Directorate

For immigrant families, the death of a family member 

often triggers an inability of surviving family members to 

seek immigration status because USCIS revokes approved 

family-based petitions automatically upon the death of 

the sponsoring petitioner.423 Besides the avenue of relief 

open to widows/widowers of U.S. citizens,424 there are two 

remedies that may preserve the surviving relative’s ability 

to immigrate: statutory reinstatement under INA section 

204(l), and humanitarian reinstatement under 8 C.F.R. § 

205.1(a)(3)(i)(C). The statutory reinstatement process under 

INA section 204(l) protects, among other listed groups, 

certain surviving relatives who are in the United States and 

who had an approved petition at the time of the qualifying 

relative’s death.425 Humanitarian reinstatement allows 

423 8 C.F.R. § 205.1(a)(3)(i)(B). 424 INA § 201(b)(2)(A)(i). 425 See Ombudsman Recommendation 55, “Improving the Adjudication of 

Applications and Petitions Under Section 204(l) of the Immigration and 

Nationality Act” (Nov. 26, 2012); http://www.dhs.gov/publication/improvingadjudication-under-ina-section-204l (accessed Mar. 9, 2015).

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certain surviving beneficiaries to continue to qualify for an 

immigration benefit if they request and obtain approval of 

a discretionary reinstatement of a petition on humanitarian 

grounds.426 This relief is sometimes granted to the principal 

beneficiary of a Form I-130, Petition for Alien Relative if the 

petition was approved prior to the death of the petitioner.427

426 8 C.F.R. § 205.1(a)(3)(i)(C). 427 See USCIS Webpage, “Humanitarian Reinstatement” (Jun. 7, 2013); http://

www.uscis.gov/green-card/green-card-through-family/humanitarianreinstatement (accessed Apr. 13, 2015).

Background

In 2009, Congress enacted INA section 204(l), broadening 

the availability of relief for surviving relatives as long 

as they resided in the United States at the time of the 

death of the qualifying relative, and if they continued 

to reside in the country at the time of application.428 In 

December 2012, USCIS issued guidance for INA section 

204(l) reinstatement for those persons with approved 

petitions at the time of the qualifying relative’s death.429 

Survivors seeking coverage under INA section 204(l) in 

this circumstance are subject to a discretionary evaluation, 

but a showing of the humanitarian and hardship factors 

needed for humanitarian reinstatement under the regulation 

is not required. Instead, the request will be approved if it is 

consistent with “the furtherance of justice.”430

428 Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 

111-83 (2009). This Act expanded survivor coverage to: beneficiaries of a 

pending or approved immediate relative petition; beneficiaries of a pending 

or approved family-based visa petition, including the principal and any 

derivatives; derivative beneficiaries of a pending or approved employmentbased visa petition; beneficiaries of a pending or approved refugee/asylee 

petition; derivatives of T and U nonimmigrants; and derivative asylees. 429 USCIS Policy Memorandum, “Approval of Petitions and Applications 

after the Death of the Qualifying Relative under New Section 204(l) of the 

Immigration and Nationality Act” (Dec. 16, 2010); http://www.uscis.gov/sites/

default/files/USCIS/Laws/Memoranda/2011/January/Death-of-QualifyingRelative.pdf (accessed Mar. 9, 2015). For an in-depth discussion of the 

survivor benefits in INA § 204(l), see Ombudsman Recommendation 55, 

“Improving the Adjudication of Applications and Petitions Under Section 

204(l) of the Immigration and Nationality Act” (Nov. 26, 2012); 

http://www.dhs.gov/publication/improving-adjudication-under-ina-section-204l

(accessed Apr. 13, 2015). 430 USCIS Policy Memorandum, “Approval of Petitions and Applications 

after the Death of the Qualifying Relative Under New Section 204(l) of the 

Immigration and Nationality Act” (Dec. 16, 2010), p. 6; http://www.uscis.

gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-ofQualifying-Relative.pdf (accessed Mar. 9, 2015).

The requirements for humanitarian requests for 

reinstatement are outlined in regulations and administrative 

guidance.431 Reinstatement is the only possible relief for 

surviving beneficiaries who are not residing in the United 

States, who cannot meet the requirements of INA section 

204(l), or who are not widows/widowers of U.S. citizens. 

431 8 C.F.R. § 205.1(a)(3)(i)(C); AFM Ch. 21.2(h)(1)(C).

An affidavit of support from a substitute sponsor must 

accompany the request, and supporting documentation of 

enumerated hardship and humanitarian factors is required.432

432 INA §§ 213A(f)(5)(B), 212(a)(4)(C); 8 C.F.R. § 213a.2(a)(2)(ii).

Ongoing Concerns

As noted in the Ombudsman’s 2013 and 2014 Annual 

Reports, stakeholders report, among other issues: variances 

and long delays in the handling of INA section 204(l) and 

humanitarian reinstatement requests; inability to ascertain 

which office will take jurisdiction over such requests; 

difficulty determining receipt of requests by USCIS; rejection 

of requests by service center mailrooms; template denials; 

confusion between humanitarian reinstatement and INA 

section 204(l) requirements; and the inability of pro se

applicants to overcome these challenges to seeking relief.433 

These and other concerns continue in this reporting period, as 

demonstrated by the inquiries received by the Ombudsman 

and feedback from stakeholders. 

433 See Ombudsman’s Annual Reports 2013, pp. 18-20; 2014, pp. 42-46. 

Lack of a USCIS Form, Standardized Procedures, and 

Consistent Instructions. USCIS lacks a standardized 

process for receiving and adjudicating INA section 204(l) 

and humanitarian reinstatement requests. In addition, 

USCIS does not post processing times for either type of 

reinstatement request.

There is no USCIS form for making a reinstatement request 

under INA section 204(l) or a humanitarian reinstatement 

request under the regulations. The USCIS website 

instructs people to send written requests for humanitarian 

reinstatement to the responsible USCIS office.434 Similarly, 

surviving relatives who seek coverage under INA section 

204(l) are instructed to make reinstatement requests to 

USCIS by letter.435

434 AFM Ch. 21.2(h)(1)(C) does not list any specific address for submission of a 

reinstatement letter. It states generally that requests should be submitted to the 

USCIS district or service center office that approved the Form I-130 or to the 

USCIS office with jurisdiction over the adjustment of status application. 435 USCIS Policy Memorandum, “Approval of Petitions and Applications 

after the Death of the Qualifying Relative under New Section 204(l) of the 

Immigration and Nationality Act” (Dec. 16, 2010), p. 6; http://www.uscis.

gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-ofQualifying-Relative.pdf (accessed Mar. 9, 2015).

Generally, to apply for immigration benefits an 

applicant must complete a required form and comply 

with accompanying instructions that specify where the 

application is to be filed.436 The requirement of consistent 

and impartial collection of data through forms and the 

reduction of burden on the applicant applies across the 

436 USCIS Webpage, “Forms;” http://www.uscis.gov/forms (accessed 

Mar. 9, 2015).

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federal government through the Paperwork Reduction 

Act (PRA). Adherence to the PRA enables USCIS to 

adjudicate the merits of individual circumstances through 

the provision of consistent information and the application 

of standard legal criteria.437

437 Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 44 U.S.C. § 3501; see 

also 5 C.F.R. § 1320.3(h).

Since USCIS priorities and normal procedures are 

established around form receipting at centralized 

locations—not around letters received by USCIS local 

offices—applicants have experienced problems with slow 

and irregular handling of humanitarian reinstatement and 

INA section 204(l) requests by USCIS. The imprecise 

process of submitting individualized letters in each case 

without a specific application form poses substantial 

challenges to uniformity in processing and is inconsistent 

with the letter and spirit of PRA.

Stakeholders suggest that USCIS develop a form for 

applicants seeking benefits as survivors under INA 

section 204(l) or humanitarian reinstatement. Doing so 

would permit processing of requests through established 

USCIS channels—that is, receipting by lockboxes and 

case tracking through adjudication. Use of a form would 

increase USCIS’ administrative efficiency, as well as assist 

a vulnerable population that has consistently been frustrated 

in seeking benefits. In particular, the development of 

such a standardized form and instructions would benefit 

pro se applicants who face considerable barriers to clear 

information on the processing of survivor requests.

A form with instructions would provide consistent 

information needed by USCIS to screen for eligibility 

for benefits under INA section 204(l) or regulatory 

humanitarian reinstatement. The letter requests sent to 

USCIS result in frequent complaints of mishandling and 

misrouting. USCIS processing centers and local offices 

are not set up to treat incoming mail without a form as an 

application for a benefit. Officers would be assisted in 

performing their adjudications properly by creation of a 

publicly available form and instructions.438

438 Information provided by USCIS (Jul. 16, 2014). In a meeting with one 

USCIS service center in 2014, and another in 2015, the managers of the unit 

designated to adjudicate reinstatement requests agreed that development of a 

form would regularize the processing.

Furthermore, under the PRA, the solicitation of information 

by an applicant for reinstatement is a sufficiently substantial 

collection of information that warrants requirement of 

a form. The PRA applies to collections of information 

from 10 or more persons where uniform categories of 

information are sought by the government.439 Both INA 

section 204(l) relief and humanitarian reinstatement solicit 

standardized information. The number of persons to 

whom these instructions apply is potentially large, as all 

too often petitioners or qualifying relatives die in the years 

between when individuals have a petition filed and when 

immigration processing is actually completed.

439 Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. § 3502(3)(A)(i).

The premise of the PRA is to “ensure the greatest 

possible public benefit from and maximize the utility of 

information created, collected, maintained, used, shared 

and disseminated by or for the Federal Government” and 

to “improve the quality and use of Federal information to 

strengthen decision making, accountability, and openness 

in Government and society.”440 The regularized collection 

of information in forms, in contrast to soliciting letters 

providing widely ranging information, would allow USCIS 

to play the critical role outlined for agencies in the PRA: 

collecting and managing information in order to promote 

openness, reduce burdens on the public, increase program 

efficiency and effectiveness, and improve the integrity, 

quality, and utility of information to all users within and 

outside the government.441

440 PRA, 44 U.S.C. § 350. 441 Office of Management and Budget Policy Memorandum, “Memorandum 

For the Heads of Executive Departments and Agencies, and Independent 

Regulatory Agencies” (Apr. 7, 2010); https://www.whitehouse.gov/sites/

default/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf

(accessed May 19, 2015).

USCIS stated in its response to the Ombudsman’s 2012 

recommendation on INA section 204(l) implementation that 

development of a form was impractical because it would 

delay implementation of the law, which was enacted in 

2009.442 Six years have passed since INA section 204(l) was 

enacted, and implementation still remains incomplete due to 

the lack of public information and uniform processing.443

442 USCIS Response to Recommendation 55 (Jun. 3, 2013); http://www.

uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/

Responses%20to%20Formal%20Recommendations/Response%20to%20

Formal%20Recommendation%2055.pdf (accessed Apr. 13, 2015). 443 Forms can help regularize agency receipt and processing of requests through 

USCIS lockbox facilities, as USCIS did in an analogous example with 

development of the Form I-912, Request for Fee Waiver in 2010. The Form 

I-912 is presented without fee to USCIS lockboxes, which scan the requests 

upon receipt. USCIS Webpage, “Instructions for Request for Fee Waiver 

(Form I-912)” (May 10, 2013); http://www.uscis.gov/sites/default/files/files/

form/i-912instr.pdf (accessed May 19, 2015).

71
72 | 

Case Example

Survivors seeking humanitarian reinstatement often face 

obstacles of poorly explained steps in seeking relief from 

USCIS. One request for case assistance submitted to the 

Ombudsman involves a person whose U.S. citizen father 

died in 2005, after an I-130 petition had been approved 

on behalf of his married daughter. In 2006, the daughter 

began corresponding with USCIS, seeking reinstatement of 

her petition. Repeated attempts to obtain a decision were 

made at in-person InfoPass visits to the local USCIS office 

and by correspondence to CSC. Four years later, in 2010, 

USCIS stated that it could no longer locate the petition or 

the reinstatement request. The applicant persisted, and 

in 2013, she re-filed a request for reinstatement. The 

applicant was then told by USCIS that she needed to 

include a request to recreate the I-130 petition in order to 

obtain an adjudication of the I-130. The Ombudsman has 

made repeated inquiries on this case in 2014 and 2015, 

with no resolution to date.

Conclusion

Humanitarian reinstatement and INA section 204(l) 

reinstatement requests require the creation of a standard 

form and accompanying instructions. The agency cannot 

properly comply with the requirements of the PRA by 

continuing its current filing practices. Surviving relatives 

will greatly benefit from a uniform process, and the agency 

will achieve great efficiency and quality in adjudications if 

a standard form were adopted. 

In-Country Refugee/

Parole Program for Central 

American Minors

Responsible USCIS Office: 

Refugee, Asylum, and International Operations 

Directorate

In recent years, unprecedented numbers of unaccompanied 

minors from Central America have been apprehended 

crossing the U.S. southern border.444 Many of these children 

suffer violence and exploitation during their cross-country 

passage.445 Through the newly-established Refugee/Parole 

Program for Central American Minors (CAM), qualifying 

parents who reside in the United States and have children 

in Central America can petition for those children to join 

them stateside as refugees or parolees. This program offers 

vulnerable youth in this region the prospect of protection 

in the United States without a dangerous trek to the 

U.S. border. 

444 See CBP Webpage, “Southwest Border Unaccompanied Alien Children;” 

http://www.cbp.gov/newsroom/stats/southwest-border-unaccompaniedchildren (accessed Apr. 25, 2015). 445 See “Review of the President’s Emergency Supplemental Request,” before the 

Senate Committee on Appropriations, 113th Cong. 2nd Sess. (Jul. 10, 2014) 

(statement of Secretary of Homeland Security Jeh Johnson); http://www.dhs.

gov/news/2014/07/10/statement-secretary-homeland-security-jeh-johnsonsenate-committee-appropriations (accessed Mar. 4, 2015).

Background

The term UACs refers to certain minors lacking parental 

support and lawful immigration status.446 The number of 

UACs from El Salvador, Honduras, and Guatemala who 

have been apprehended by CBP grew from 10,146 in FY 

2012 to 51,705 in FY 2014.447 Various forces account for 

this rise, including widespread crime and poverty in these 

countries, the children’s desire for reunification with their 

parents in the United States, and heightened sophistication 

among human smuggling networks.448 Individuals 

seeking to exploit these minors, in combination with other 

hazards of passage, harm many children making this 

northward journey.449 

446 HSA § 462; 6 U.S.C. § 279(g)(2); see also Ombudsman Recommendation 57, 

“Ensuring a Fair and Effective Asylum Process for Unaccompanied Children” 

(Sept. 20, 2012); http://www.dhs.gov/sites/default/files/publications/cisombensuring-fair-asylum-process-for-uac.pdf (accessed Mar. 31, 2015). 447 CBP Webpage, “Southwest Border Unaccompanied Alien Children;” http://

www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children

(accessed Apr. 25, 2015). 448 See U.S. Government Accountability Office Report, “Central America: 

Information on Migration of Unaccompanied Children from El Salvador, 

Guatemala, and Honduras,” GAO-15-362 (Feb. 2015); http://www.gao.gov/

products/GAO-15-362 (accessed Mar. 4, 2015). 449 “Review of the President’s Emergency Supplemental Request,” before 

the Senate Committee on Appropriations, 113th Cong. 2nd Sess. (2014) 

(statement of Secretary of Homeland Security Jeh Johnson); http://www.dhs.

gov/news/2014/07/10/statement-secretary-homeland-security-jeh-johnsonsenate-committee-appropriations (accessed Mar. 4, 2015). (“[T]he long 

journey for a child, in the custody of a criminal smuggling organization, from 

Central America to the United States is dangerous. Many of the children are 

exploited, abused and hurt.”)

In response to these developments, USCIS’ RAIO 

Directorate, in partnership with DOS, launched CAM 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

on December 1, 2014.450 CAM enables certain foreign 

national parents who reside in the United States to petition 

for their children living in Central America. From within 

their own countries, the petitioned children may then seek 

refugee or parole status stateside.451 USCIS first determines 

whether those children qualify for refugee status.452 If 

USCIS finds that a child does not qualify for refugee status, 

USCIS may consider, on a case-by-case basis, whether 

the child qualifies for parole.453 In some instances, other 

family members of the petitioned children may also qualify 

under CAM.

450 See USCIS Webpage, “In-Country Refugee/Parole Processing for Minors in 

Honduras, El Salvador and Guatemala (Central American Minors—CAM)” 

(Feb. 9, 2015); http://www.uscis.gov/humanitarian/refugees-asylum/refugees/

country-refugeeparole-processing-minors-honduras-el-salvador-andguatemala-central-american-minors-cam (accessed Mar. 4, 2015). 451 Id. 452 See Refugee Processing Center Webpage, “U.S. Refugee Admissions Program 

Central American Minors Flowchart” (Jan. 22, 2015); http://www.wrapsnet.

org/Portals/1/CAM%20Handout.pdf (accessed Mar. 4, 2015). 453 Id.

Program Eligibility. To be eligible for consideration 

under CAM, the minor (a Qualifying Child) must be: 

(1) a national of and resident in El Salvador, Honduras, 

or Guatemala (minors living in the United States are 

ineligible); (2) unmarried; (3) under the age of 21; and 

(4) have at least one parent, referred to as the Qualifying 

Parent, who is lawfully present in the United States under 

one of the following statuses or categories: Permanent 

Resident Status, TPS, parole, deferred action, Deferred 

Enforced Departure, or withholding of removal.454

454 USCIS Webpage, “In-Country Refugee/Parole Processing for Minors in 

Honduras, El Salvador and Guatemala (Central American Minors—CAM)” 

(Feb. 9, 2015); http://www.uscis.gov/humanitarian/refugees-asylum/refugees/

country-refugeeparole-processing-minors-honduras-el-salvador-andguatemala-central-american-minors-cam (accessed Mar. 4, 2015).

Certain family members of the Qualifying Child may also 

be eligible for CAM. First, unmarried children of the 

Qualifying Child who are under 21 may qualify for CAM 

as derivative beneficiaries.455 For example, if a 20-yearold Qualifying Child is herself the mother of a 2-year-old 

child, the child may be eligible under CAM. Likewise, 

under certain circumstances, a Qualifying Child’s parent 

who resides with the child in Central America and is the 

legal spouse of the Qualifying Parent residing in the United 

States may gain CAM program access.456 This scenario 

might arise, for example, when a woman departs from El 

455 Id. 456 Id.

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74 | 

Salvador and takes up residence in the United States, while 

her child and husband remain together in El Salvador. 

Assuming the woman is lawfully present in the United 

States in one of the aforementioned statuses or categories, 

both her child and husband in El Salvador could be eligible 

under CAM.

Finally, in situations where a Qualifying Parent’s eligible legal 

spouse resides in Central America with the Qualifying Child 

as well as additional children, the additional children may be 

eligible under CAM as derivative beneficiaries of the eligible 

legal spouse.457 For example, if USCIS denied independent 

refugee or parole status to the sibling of a Qualifying Child, 

that sibling may still be eligible for CAM as the unmarried 

child of the legal spouse of the Qualifying Parent.

457 Information provided by USCIS (Mar. 19, 2015). 

Application Process. Qualifying Parents initiate the CAM 

application process by filing Form DHS-7699, Affidavit of 

Relationship (AOR) for Minors Who Are Nationals of El 

Salvador, Guatemala, and Honduras (CAM-AOR)458 under 

the guidance of one of over 300 DOS-affiliated resettlement 

agencies located throughout the United States.459 See 

Figure 4.6, CAM Program Flow Chart.460 There is no fee 

for filing this application.461 In consultation with these 

resettlement agencies, a Resettlement Support Center, 

operated by the International Organization for Migration 

(IOM) in Central America under the funding and direction 

of DOS, conducts pre-screening interviews of Qualifying 

Children claimed on the CAM-AOR.462

458 See Refugee Processing Center Webpage, “Frequently Asked Questions” (Jan. 

23, 2015); http://www.wrapsnet.org/Portals/1/PUBLIC%20FAQs%20Jan%20

2015%20FINAL.docx (accessed Mar. 10, 2015). 459 Refugee Processing Center Webpage, “Department of State Bureau of 

Population, Refugees, and Migration Office of Admissions—Refugee Processing 

Center Affiliate Directory” (Feb. 20, 2015); http://www.wrapsnet.org/Portals/1/

Affiliate%20Directory%20Posting/FY%202014%20Affiliate%20Directory/

Public%20Affiliate%20Directory%202-20-15.pdf (accessed Mar. 4, 2015). 460 Information provided by USCIS (Mar. 22, 2015). 461 USCIS Webpage, “In-Country Refugee/Parole Processing for Minors in 

Honduras, El Salvador and Guatemala (Central American Minors—CAM)” 

(Feb. 9, 2015); http://www.uscis.gov/humanitarian/refugees-asylum/refugees/

country-refugeeparole-processing-minors-honduras-el-salvador-andguatemala-central-american-minors-cam (accessed May 4, 2015). 462 See Refugee Processing Center Webpage, “U.S. Refugee Admissions Program 

Central American Minors Flowchart” (Jan. 22, 2015); http://www.wrapsnet.

org/Portals/1/CAM%20Handout.pdf (accessed Mar. 4, 2015).

Following these interviews, Qualifying Parents and 

biological Qualifying Children must complete mandatory 

DNA testing to confirm the claimed parent-child 

relationships.463 Though the Qualifying Parent bears the 

costs of DNA testing for each claimed biological child, 

DOS reimburses those costs where initial test results are 

463 Id.

confirmatory and where no subsequent tests are required.464 

Parent-child DNA tests at qualifying testing centers fall 

along a range of price points, including tests offered at $395 

and $675.465 Some domestic resettlement agencies may 

offer loans covering those costs to the Qualifying Parents.466

464 See Refugee Processing Center Webpage, “Frequently Asked Questions” (Jan. 

23, 2015); http://www.wrapsnet.org/Portals/1/PUBLIC%20FAQs%20Jan%20

2015%20FINAL.docx (accessed Mar. 10, 2015). 465 See American Association of Blood Banks (AABB) Webpage, “AABB 

Accredited Relationship (DNA) Testing Facilities” (no date provided); http://

www.aabb.org/SA/FACILITIES/Pages/RTestAccrFac.aspx (accessed Mar. 31, 

2015); see also, Universal Genetics Webpage, “DNA Testing Fee Schedule,” 

(no date provided); http://www.dnatestingforpaternity.com/fees.html (accessed 

Mar. 31, 2015); Affiliated Genetics Webpage, “Immigration Testing;” 

http://www.affiliatedgenetics.com/?product=immigration-testing (accessed 

Mar. 31, 2015). 466 Information provided by USCIS (Mar. 19, 2015).

Upon the receipt of confirmatory DNA test results, USCIS 

Refugee Officers conduct interviews of the Qualifying 

Children in Central America. These interviews are distinct 

from the pre-screening interviews previously conducted 

by the Resettlement Support Center. USCIS then decides 

whether a Qualifying Child qualifies for refugee status 

and is otherwise admissible to the United States.467 If so, 

and if the child meets further criteria such as health and 

sponsorship requirements, the child will receive travel 

assistance from IOM and join the Qualifying Parent(s) in 

the United States as a refugee.468 On a case-by-case basis, 

where USCIS denies refugee status to the Qualifying Child, 

the agency may consider that child for parole status in the 

United States.469 Children who qualify for parole under 

CAM must pay for their own travel to the United States.470 

Qualifying Children “facing imminent danger” in Central 

America may be eligible for expedited processing of CAM 

applications and/or the provision of safe shelter.471

467 See USCIS CAM Teleconference Notes (Mar. 31, 2015), p. 1. 468 See Refugee Processing Center Webpage, “U.S. Refugee Admissions Program 

Central American Minors Flowchart” (Jan. 22, 2015); http://www.wrapsnet.

org/Portals/1/CAM%20Handout.pdf (accessed Mar. 4, 2015). 469 See Refugee Processing Center Webpage, “Frequently Asked Questions” (Jan. 

23, 2015); http://www.wrapsnet.org/Portals/1/PUBLIC%20FAQs%20Jan%20

2015%20FINAL.docx (accessed Mar. 10, 2015). 470 Id. 471 “Eroding the Law and Diverting Taxpayer Resources: An Examination of the 

Administration’s Central American Minors Refugee/Parole Program,” before 

the Subcommittee on Immigration and The National Interest of the U.S. 

Senate Committee on the Judiciary, 114th Cong. 2nd Sess. 3 (Apr. 23, 2015) 

(written statement of Simon Henshaw, Principal Deputy Assistant Secretary, 

Bureau of Population, Refugees, and Migration, U.S. Department of State); 

http://www.judiciary.senate.gov/imo/media/doc/04-23-15%20Henshaw%20

Testimony.pdf (accessed Apr. 25, 2015).

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76 | 

Additionally, USCIS will determine whether other family 

members also qualify under the program.472 A Qualifying 

Child’s own children may derive refugee status on the basis 

of the Qualifying Child’s refugee claim.473 By contrast, a 

Qualifying Child’s parent who resides with the Qualifying 

Child in Central America and who is the legal spouse 

of the Qualifying Parent must establish a refugee claim 

independent of the Qualifying Child’s claim.474 Where such 

a legal spouse does receive refugee status through CAM and 

has children who are not Qualifying Children, those children 

may derive refugee status through the parent.475

472 USCIS Webpage, “In-Country Refugee/Parole Processing for Minors in 

Honduras, El Salvador and Guatemala (Central American Minors—CAM)” 

(Feb. 9, 2015); http://www.uscis.gov/humanitarian/refugees-asylum/refugees/

country-refugeeparole-processing-minors-honduras-el-salvador-andguatemala-central-american-minors-cam (accessed May 4, 2015). 473 Id. 474 See Refugee Processing Center Webpage, “Frequently Asked Questions” (Jan. 

23, 2015); http://www.wrapsnet.org/Portals/1/PUBLIC%20FAQs%20Jan%20

2015%20FINAL.docx (accessed Mar. 10, 2015). 475 Information provided by USCIS (Mar. 22, 2015).

Ongoing Concerns

DNA Testing. The costs of mandatory DNA tests to 

confirm biological relationships claimed on the CAMAOR may present barriers to applicants otherwise willing 

and able to file under CAM. While DOS reimburses 

those costs upon receipt of confirmatory test results, 

some Qualifying Parents may be unable to afford the fees 

upfront, particularly where these parents claim multiple 

Qualifying Children. Crucially, only some DOS-affiliated 

domestic resettlement agencies may be offering loans to 

Qualifying Parents to cover the costs of DNA tests.476 The 

Ombudsman encourages the widespread adoption of such 

loan programs by DOS-affiliated domestic resettlement 

agencies as a tool for enabling broader access to the joint 

USCIS-DOS CAM program.

476 Id.

Public Engagement and Program Implementation. 

USCIS, in partnership with DOS, has performed a range 

of public outreach to publicize the CAM program and 

educate stakeholders about the application process. 

This outreach has included USCIS website information 

provided in English and Spanish; engagement sessions in 

Silver Spring, Maryland and Falls Church, Virginia; and 

events hosted at the Salvadoran and Honduran embassies 

in Washington, DC.477 USCIS also led an English 

language public teleconference on CAM on March 31, 

2015 and a Spanish language teleconference on May 6, 

477 Id.

2015.478 Furthermore, USCIS and DOS have discussed 

CAM through over 40 media outlets both domestic and in 

Central America.479

478 USCIS CAM Teleconference Notes (Mar. 31, 2015), p. 7; USCIS Webpage, 

“The Central American Minors (CAM) Refugee/Parole Program” (Apr. 21, 

2015); http://www.uscis.gov/outreach/upcoming-national-engagements/centralamerican-minors-cam-refugeeparole-program (accessed Apr. 25, 2015). 479 “Eroding the Law and Diverting Taxpayer Resources: An Examination of the 

Administration’s Central American Minors Refugee/Parole Program,” before 

the Subcommittee on Immigration and The National Interest of the U.S. 

Senate Committee on the Judiciary, 114th Cong. 2nd Sess. 3 (2015) (written 

statement of Simon Henshaw, Principal Deputy Assistant Secretary, Bureau of 

Population, Refugees, and Migration, U.S. Department of State); http://www.

judiciary.senate.gov/imo/media/doc/04-23-15%20Henshaw%20Testimony.

pdf (accessed Apr. 25, 2015); see also information provided by USCIS 

(Mar. 22, 2015).

Despite these efforts, since CAM’s December 31, 2014 

launch, applicant participation in the program has been 

modest relative to the scale of recent CBP apprehensions 

of Central American UACs. As of March 22, 2015, USCIS 

reported that the CAM program had received “over 300” 

applications.480 By April 23, 2015, this total had climbed 

to 565 applications—439 applications for El Salvador, 

114 for Honduras, and 12 for Guatemala.481 See Figure 

4.7, CAM Applications per Country. The majority of 

Qualifying Parents filing Form DS-7699 were Honduran 

and Salvadoran nationals lawfully present in the United 

States under TPS.482 As of April 23, 2015, USCIS had not 

yet conducted any interviews of CAM applicants in Central 

America, though the agency aims to commence those 

interviews in the spring or summer of 2015 after the receipt 

of the applicants’ DNA test results.483

480 USCIS CAM Teleconference Notes (Mar. 31, 2015), p. 7. 481 “Eroding the Law and Diverting Taxpayer Resources: An Examination of the 

Administration’s Central American Minors Refugee/Parole Program,” before 

the Subcommittee on Immigration and The National Interest of the U.S. 

Senate Committee on the Judiciary, 114th Cong. 2nd Sess. 3 (2015) (written 

statement of Simon Henshaw, Principal Deputy Assistant Secretary, Bureau of 

Population, Refugees, and Migration, U.S. Department of State); http://www.

judiciary.senate.gov/imo/media/doc/04-23-15%20Henshaw%20Testimony.pdf

(accessed Apr. 25, 2015). 482 Notes on “Eroding the Law and Diverting Taxpayer Resources: An 

Examination of the Administration’s Central American Minors Refugee/

Parole Program,” before the Subcommittee on Immigration and The National 

Interest of the U.S. Senate Committee on the Judiciary, 114th Cong. 2nd Sess. 

3 (2015) (Apr. 25, 2015). 483 Id.

These relatively low filing totals reflect, in part, CAM’s 

status as a newly-established program. At the same time, 

the recent growth in these totals underscores the program’s 

ultimate potential to protect Qualifying Children on a broad 

scale. In demonstration of this potential, the number of 

CAM applicants as of March 31, 2015—565—amounts 

to only a fraction of the 51,705 Central American UACs 

apprehended by CBP in FY 2014 or even the 9,802 such 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

UACs apprehended in FY 2015 as of March 31, 2015.484

Accordingly, while USCIS and DOS have already 

undertaken various useful initiatives to publicize CAM, even 

more comprehensive public engagement, both domestically 

and abroad, would help extend awareness of the program to 

broader segments of relevant populations, stimulate higher 

applicant participation, and secure protection for a greater 

 

number of endangered children.

484 CBP Webpage, “Southwest Border Unaccompanied Alien Children;” http://

www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children

(accessed Apr. 25, 2015).

0

50

100

150

200

250

300

350

400

450

4.7 CAM Applications per Country 

(Dec. 1, 2014 to Apr. 23, 2015)

El Salvador Honduras Guatemala

12

439

114

Source: Information provided by DOS (Apr. 25, 2015).

Conclusion

CAM represents an important complement to USCIS’ 

existing humanitarian programs. Following CAM’s launch 

in December 2014, the Ombudsman met with RAIO 

Directorate officials to discuss the program’s ongoing 

implementation and will continue to monitor the program’s 

progress in addressing the plight of qualifying Central 

American children.

77
78 | ANNUAL REPORT TO CONGRESS JUNE 2015

Interagency, Customer Service, and 

In this year’s Annual Report, the Ombudsman focuses on the 

proper delivery of USCIS notices and documents, recording 

or withdrawal of a legal representative, USCIS’ calculation of 

processing times, and the Transformation initiative.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 79

Customer Service: Ensuring 

Proper Delivery of Notices 

and Documents

Responsible USCIS Offices: Office of Intake and 

Document Production, Field Operations and Service 

Center Operations Directorates, and the Customer 

Service and Public Engagement Directorate

Every year, USCIS sends millions of notices, decisions, 

and documents to applicants and petitioners and their 

attorneys through USPS. Some of these mailings inform 

individuals of a required next step in the application 

process for an immigration benefit, such as fingerprinting, 

an interview, or an RFE. When time sensitive notices are 

not received, individuals often do not take the required 

action, and the application or petition may be denied for 

abandonment. USCIS also mails decision notices and 

immigration documents, including EADs, Travel Documents, 

and Permanent Resident Cards, which when not properly 

delivered can leave individuals without the ability to obtain 

or renew their driver’s licenses, apply for Social Security 

Numbers, start or continue employment without interruption, 

or travel outside of the United States. The proper delivery of 

documents and effectiveness of USCIS’ change of address 

systems are thus critical. 

Background

USCIS generally mails notices and documents to the 

applicant or petitioner and mails courtesy copies to the 

attorney or accredited representative of record.485 Notices 

and documents are mailed to the addresses provided to 

USCIS on the submitted form unless USCIS is notified 

of an address change. There is an exception for notices 

issued to VAWA self-petitioners; these notices are mailed to 

“safe” addresses.486

485 8 C.F.R. § 103.2(b)(19). 486 “Notices of Decisions and Documents Evidencing Lawful Status; Final Rule,” 

79 Fed. Reg. 64299 (Oct. 29, 2014). 

Process Integrity
80 | 

USCIS published a final rule amending its regulations 

on the issuance of notices and documents on October 29, 

2014, which became effective on January 27, 2015.487 As 

a result, applicants and petitioners may indicate on the 

revised Form G-28, Notice of Entry of Appearance as 

Attorney or Representative whether they would like USCIS 

to mail original notices and documents to their attorney or 

accredited representative. This has the potential to benefit 

thousands of represented individuals and employers who 

may now designate a more permanent address to receive 

their original notices and documents.

487 USCIS Webpage, “Final Rule: Notices of Decisions and Documents 

Evidencing Lawful Status. Effective Jan. 27, 2015” (Jan. 27, 2015); http://

www.uscis.gov/news/alerts/final-rule-notices-decisions-and-documentsevidencing-lawful-status-effective-jan-27-2015 (accessed May 18, 2015). See 

also 79 Fed. Reg. at 64305. Through this final rule, which became effective on 

January 27, 2015, DHS amended its regulations in six major ways: 

1) USCIS clarified that it will send notices “only to the applicant or 

petitioner when...unrepresented.” 8 C.F.R. § 103.2(b)(19)(i);

2) USCISfurther noted that it will send notices to the applicant or 

petitioner and to the attorney or accredited representative of record if 

USCIS was properly notified of the representation by an attorney or 

accredited representative. 8 C.F.R. § 103.2(b)(19)(ii)(A); 

3) USCIS will also send original notices and documents to the attorney 

or accredited representative if the applicant or petitioner specified such 

action on a signed Form G-28 with a courtesy copy to the applicant or 

petitioner. 8 C.F.R. § 103.2(b)(19)(ii)(A); 

4) USCIS stated that it will send electronic notifications to the applicant 

or petitioner and the attorney or accredited representative unless the 

applicant or petitioner specifically requests to receive correspondence 

via mail, or if USCIS determines that the issuance of a paper notice or 

decision is warranted. 8 C.F.R. § 103.2(b)(19)(ii)(B); 

5) Unless specifically requested by the applicant or petitioner, USCIS will 

send the approval notice, or Form I-797, Notice of Action with the tearoff I-94, Arrival-Departure Record to the applicant’s or petitioner’s 

attorney or accredited representative where a signed, current Form 

G-28 is properly filed. 8 C.F.R. § 103.2(b)(19)(ii)(C); 

6) USCIS further stated that it will send Permanent Resident Cards 

and EADs only to the applicant or petitioner, unless the applicant or 

petitioner specifically consented for the document to be sent to the 

attorney or accredited representative. 8 C.F.R. § 103.2(b)(19)(iii). 

Change of Address. USCIS regulations require most 

non-U.S. citizens to notify USCIS of a change of address 

within 10 days of moving.488 Individuals must submit a 

completed Form AR-11, Change of Address by mail or 

through USCIS’ website.489 In addition to the Form AR-11, 

applicants and petitioners must contact USCIS to update 

the address for each pending matter before the agency by 

488 INA §§ 265 and 266; 8 C.F.R. Part 265. 489 USCIS Webpage, “Change of Address Information” (Feb. 4, 2014); http://

www.uscis.gov/addresschange (accessed Apr. 23, 2015). Service Requests for 

a change of address can be initiated by either calling the NCSC or completing 

a request on USCIS’ webpage at http://www.uscis.gov/addresschange. 

Service Requests are sent through USCIS’ Service Request Management Tool 

and routed to the USCIS office of jurisdiction.

calling NCSC490 or submitting a service request online.491

According to USCIS, their systems are updated to reflect 

 

new addresses within 5 business days.492 Stakeholders 

report, however, that documents or notices are often mailed 

to a previous address despite the submission of a timely 

change of address to USCIS.

490 The NCSC can be reached at 1-800-375-5283. At the AILA Spring 

Conference held on April 17, 2015, USCIS noted that 25 to 35 percent of the 

NCSC call volume involves change of address issues. 491 USCIS Webpage, “Change of Address;” https://egov.uscis.gov/coa/

displayCOAForm.do (accessed Mar. 12, 2015). 492 Information provided by USCIS (Oct. 2, 2014).

Secure Mail Initiative. On May 2, 2011, USCIS 

announced that it completed implementation of the 

Secure Mail Initiative, under which certain immigration 

documents are delivered to customers via USPS Priority 

Mail with Delivery Confirmation.493 Individuals who 

receive notification that their Form I-485, Application to 

Register Permanent Residence or Adjust Status; Form 

I-765, Application for Employment Authorization; or Form 

I-131, Application for Travel Document has been approved 

may now call the NCSC to obtain the tracking number and 

then monitor delivery status via USPS’s website. USCIS 

recommends that customers wait at least 2 weeks after 

receiving an approval notice before contacting the NCSC 

for the tracking number. USCIS has also stated that they 

are in discussions with USPS on address validation and 

improving delivery services.

493 USCIS Webpage, “USCIS Improves Delivery of Immigration Documents 

through Secure Mail Initiative” (May 2, 2011); http://www.uscis.gov/news/

uscis-improves-delivery-immigration-documents-through-secure-mailinitiative (accessed Mar. 10, 2015).

Pre-Paid Mailing Labels. In October 2014, USCIS 

announced that it would accept pre-paid courier service 

mailing labels with envelopes submitted with initial filings 

for advance parole travel documents, re-entry permits, and 

refugee travel documents filed with the service centers or 

the NBC. USCIS will also accept pre-paid mailing labels 

to send approval and denial notices issued by the service 

centers.494

494 See USCIS Webpage, “Clarification: USCIS Customers Can Select Delivery 

Service to Receive Certain Documents” (Aug. 20, 2014); http://www.uscis.gov/

news/alerts/clarification-uscis-customers-can-select-delivery-service-receivecertain-documents (accessed Mar. 11, 2015); USCIS Webpage, “USCIS 

Service and Office Locator: Use of a Courier Service to Receive Certain 

Notices, Decisions or Travel Documents; https://egov.uscis.gov/crisgwi/

go?action=offices.type&OfficeLocator.office_type=SC (accessed 

Mar. 10, 2015).

Returned Secure Documents. Between October 1, 2011 and 

September 19, 2014, USCIS received 141,263 undeliverable 

notices and Permanent Resident Cards issued in connection 

with Forms I-485. In addition, USCIS reports receiving 

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201,865 undeliverable EADs and/or notices for Forms I-765 

and I-131 in the same time period.495

495 Information provided by USCIS (Oct. 2, 2014).

Despite improvements that USCIS has made to its online 

change of address system496 and that undelivered notices 

and/or documents comprise only a small portion of USCIS’ 

workload, thousands of individuals continue to be affected 

by mailing issues. Undelivered notices and documents must 

be re-sent to a new address; in many cases, a new application 

or petition must be submitted, with new filings fees, to 

replace the lost document. USCIS incurs costs for storing 

undelivered notices and documents and for resending them. 

496 See USCIS Webpage, “Change of Address” (Feb. 4, 2014); http://www.uscis.

gov/addresschange (accessed Apr. 23, 2015).

On November 6, 2014, representatives from USCIS’ 

Customer Service Public Engagement Division and 

USPS participated in a panel at the Ombudsman’s Annual 

Conference titled “Change of Address and Mailing Issues: 

Delivery of USCIS Correspondence and Documents.” 

USCIS observed that the change of address system is 

complex and that the agency receives approximately 

500,000 change of address requests and 250,000 nondelivery inquiries annually via the NCSC and USCIS 

website. USCIS data for the 3 most recent fiscal years 

show that the spouses of U.S. citizens, refugees or asylees, 

and parents of U.S. citizens have been the populations 

primarily affected by undelivered documents and 

notices for Form I-485 applications.497 See Figure 5.1, 

Undelivered Documents and/or Notices by Fiscal Year.

497 Information provided by USCIS (Oct. 2, 2014). USCIS’ data show that the 

most returned Permanent Resident Cards are for applicants applying for 

adjustment of status based on an approved immigrant visa petition filed by 

a U.S. citizen spouse or parent or an approved refugee or asylee application. 

USCIS data did not differentiate between I-765/I-131 combination cards and 

stand-alone documents.

Identified Issues

The Ombudsman receives a significant number of requests 

for case assistance due to undelivered or mis-delivered 

81

5.1 Undelivered Documents and/or Notices by Fiscal Year

FORM / BENEFIT TYPE FY 2012 FY 2013 FY 2014 TOTAL

I-485 52,464 46,892 41,907 141,263

I-765 and I-131 59,610 75,179 67,076 201,865

Source: Information provided by USCIS (Oct. 2, 2014).

5.2 Top Six Class Preferences where the Permanent Resident Card and/or I-485 Notice was Undelivered and/or 

Destroyed or Not Returned

PREFERENCE CATEGORY FY 2012 FY 2013 FY 2014 TOTAL

Spouse of a U.S. Citizen — 

Conditional (CR6) 7,850 6,864 4,874 19,588

Spouse of a U.S. Citizen (IR6) 3,854 3,131 2,060 8,775

Refugees, Asylees, or Cuban/

Haitian Entrants (RE6) 2,655 1,763 1,637 6,055

Parent of a U.S. Citizen (IR0) 1,937 2,289 1,696 5,922

Refugees, Asylees, or Cuban/

Haitian Entrants (RE8) 2,771 1,534 1,468 5,773

Professional holding an 

advanced degree or of 

exceptional ability (E26)

1,934 1,852 1,172 4,958

Source: Information provided by USCIS (Oct. 2, 2014).
82 | 

5.3 Summary of Type of Travel Document and/or Notice that was Undelivered and/or Destroyed or Not Returned

TYPE OF TRAVEL DOCUMENT FY 2012 FY 2013 FY 2014 TOTAL

Reentry Permit 42,254 58,860 51,117 152,051

Permanent Resident Applying for 

Refugee Travel Document 16,835 15,940 15,203 47,978

Asylee or Refugee Applying for 

Refugee Travel Document 516 549 742 1,807

Source: Information provided by USCIS (Oct. 2, 2014).

notices and documents. The Ombudsman works to resolve 

mailing issues that arise after applicants and petitioners 

have properly updated their addresses with USCIS. 

Change of Address. Many applicants and petitioners are 

unaware that the submission of Form AR-11 by itself 

does not update USCIS systems for pending applications 

or petitions, and that USCIS requires individuals with 

pending applications or petitions to either call the NCSC 

or submit a service request online. USCIS may consider 

a notice or document mailed to the previous address as 

properly delivered if an applicant or petitioner only submits 

Form AR-11 and USPS does not return the notice or 

document. Applicants and petitioners who do not receive a 

notice or document sent to a previous address may have to 

re-file and again pay filing fees to replace the lost document 

or continue immigration processing.

If a notice or document was delivered to a previous address 

and a change of address service request was submitted 

prior to the notice or document production, the applicant 

or petitioner in most cases must still file a new application 

to obtain a replacement upon showing that the change 

of address was submitted to USCIS. In that event, the 

customer is not required to re-pay the filing fee.498 USCIS 

processes applications to replace lost or undelivered 

documents in the same manner and processing time as the 

original application.

498 Information provided by USCIS (Oct. 2, 2014).

Delivery of Documents. Even with the Secure Mail 

Initiative, USPS’s website only shows delivery 

confirmation to a zip code, and not to an address, often 

leaving applicants and petitioners unable to prove to USCIS 

that the document or notice was not received. According 

to USCIS policy, if USPS does not return a document or 

notice to USCIS, and there has been no change of address 

submitted, USCIS will consider the notice or document as 

properly delivered, and the applicant must re-file and again 

pay the filing fee in order to obtain a replacement document 

or continue immigration processing. 

Case Examples

An applicant submitted a request for case assistance to the 

Ombudsman in June 2014 after not receiving an EAD. In 

September 2013, the applicant submitted Form I-765, which 

was approved in November 2013. After monitoring USCIS’ 

online case status for updates, the applicant’s attorney 

placed four calls to the NCSC because neither the attorney 

nor the applicant received the EAD. The attorney confirmed 

the mailing address with USCIS during each of the four calls. 

The attorney requested the tracking number for the EAD 

mailing, but USCIS was not able to provide it at the time of 

the calls. During the fourth call placed in January 2014, 

USCIS informed the attorney that the EAD was returned to 

USCIS as undeliverable. In February 2014, the applicant filed 

a second Form I-765, again paying filing fees. Neither the 

applicant nor the attorney received the approval notice, which 

was issued in April 2014 according to the USCIS website. The 

attorney called the NCSC to confirm the applicant’s address 

and to place a service request. In June 2014, USCIS’ online 

case status website indicated that the post office returned 

the notice as undeliverable. Despite USCIS having the correct 

mailing address in its system and refiling, the applicant 

continued to have problems receiving notices and spent over 

12 months waiting for the delivery of the EAD. 

Another applicant updated his address with USCIS 

following entry into the United States and payment of the 

immigrant visa fee in November 2013. USCIS mailed the 

Permanent Resident Card to the old address, and USPS 

returned the card to USCIS as undeliverable in March 

2014. USCIS re-mailed the card in July 2014; however, the 

card was sent to the applicant at an incorrect address in 

a different state. USCIS was unable to explain the reason 

this incorrect address was entered as the applicant’s 

mailing address when the card was re-sent. The Permanent 

Resident Card was eventually mailed to the customer’s 

correct address in that same month.

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In a third example, an applicant’s Form I-751, Petition to 

Remove Conditions on Residence was approved in October 

2013, but the Permanent Resident Card was returned 

to USCIS as undeliverable in November. The applicant 

submitted Form AR-11, made multiple phone calls to the 

NCSC to verify the mailing address, and attended multiple 

InfoPass appointments at the local USCIS office to have 

the Permanent Resident Card re-sent. In August 2014, the 

applicant submitted a request for case assistance to the 

Ombudsman. USCIS promptly corrected the applicant’s 

mailing address in its systems and successfully mailed the 

Permanent Resident Card in September 2014.

Ongoing Plan of Action

The Ombudsman encourages USCIS to expand delivery 

service using pre-paid mailing labels provided by 

customers to send Permanent Resident Cards and EADs. 

The Ombudsman also encourages USCIS to consider the 

use of USPS delivery with Signature Confirmation. The 

Ombudsman recognizes that the cost of sending documents 

via Signature Confirmation is higher than Delivery 

Confirmation; however, the benefits of having the recipient 

sign to confirm receipt of important documents may offset 

the cost of USCIS storing undelivered documents, searching 

for an updated address, and resending the document to the 

new address via Delivery Confirmation. Based on feedback 

received by the Ombudsman, applicants and petitioners 

may be willing to pay for the additional cost of Signature 

Confirmation. The Ombudsman will continue to monitor 

mailing issues and looks forward to additional dialogue with 

USCIS on delivery and change of address matters.

Issues with USCIS Intake of 

Form G-28, Notice of Entry 

of Appearance as Attorney or 

Accredited Representative

Responsible USCIS Offices: Office of Intake and 

Document Production, and Field Operations and 

Service Center Operations Directorates

The Ombudsman frequently hears concerns from attorneys 

that Form G-28, Notice of Entry of Appearance as Attorney 

or Accredited Representative is not properly recorded 

when submitted after an application or petition has been 

filed with USCIS. Similarly, stakeholders bring cases to 

the Ombudsman’s attention where notices of withdrawal 

of representation are not captured in USCIS systems, and 

attorneys continue to receive notices as the attorney of 

record. The Ombudsman discussed issues with rejections 

of Forms G-28 in the 2014 Annual Report,499 and USCIS 

has yet to implement procedures to provide notice to 

an applicant/petitioner or to the attorney or accredited 

representative upon rejection of a Form G-28. Failure 

to properly record the legal representative may prevent 

individuals and employers from receiving notice of USCIS 

actions or the delivery of secure documents. It raises 

concerns pertaining to an individual’s right to counsel.

499 See Ombudsman’s Annual Report 2014, pp. 53-54.

Background

As described in the Ombudsman’s 2014 Annual Report to 

Congress, an applicant or petitioner filing for immigration 

benefits with USCIS may be represented, at no cost to the 

government, by an attorney or an accredited representative 

of a recognized organization.500 In addition, whenever 

an examination is required under the regulations, the 

individual has the right to be represented before USCIS 

by an attorney or accredited representative.501 Once an 

attorney or accredited representative has filed a properly 

completed Form G-28 on behalf of an applicant or 

petitioner, USCIS is required to serve documents and 

notices to the legal representative.502

500 8 C.F.R. § 103.2(a)(3); see Ombudsman’s Annual Report 2014, pp. 53-54. 501 8 C.F.R. § 292.5(b). 502 8 C.F.R. § 292.5(a). A Form G-28 submitted without the required information 

in Item Numbers 1.-1.a -1.c or 2.a-2.c of the form instructions will be rejected. 

Instructions for Form G-28 (Rev. 03/04/15). In such instances, USCIS 

will send original notices and correspondence to the attorney or accredited 

representative noted on the Form G-28, with a copy to the applicant or 

petitioner. USCIS Policy Memorandum, Representation and Appearances 

and Interview Techniques; Revisions to Adjudicator’s Field Manual (AFM) 

Chapters 12 and 15; AFM Update AD11-42, PM-602-0055.1 (May 23, 2012).

On March 6, 2015, USCIS published a revised Form 

G-28, which is part of a final rule that became effective 

on January 27, 2015. The revised Form G-28 includes 

two new data collection points that allow applicants and 

petitioners to tell USCIS whether they want to receive their 

notices and secure documents directly, or whether they 

want USCIS to send them to their legal representatives.503 

USCIS noted on its website that it will only accept the 

revised Form G-28 on and after May 18, 2015.504

503 8 C.F.R. § 103.2(b)(19) (2014). 504 USCIS Webpage, “G-28, Notice of Entry of Appearance as Attorney or 

Accredited Representative” (May 15, 2015); http://www.uscis.gov/g-28

(accessed May 18, 2015).

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In February 2014, the Ombudsman brought to USCIS’ 

attention issues regarding acceptance of Form G-28, and 

the agency confirmed that it does not notify attorneys when 

their Forms G-28 have been rejected. In March 2015, 

USCIS updated the G-28 Filing Tips on USCIS’ website 

to address the new form version.505 These tips continue to 

include guidance related to avoiding rejections. USCIS has 

acknowledged problems with its method for handling Form 

G-28 rejections, and indicated it has formulated a number 

of solutions that are being reviewed by agency leadership.

505 USCIS Webpage, “Filing Your Form G-28;” http://www.uscis.gov/forms/

filing-your-form-g-28 (accessed Apr. 27, 2015).

USCIS does not track the number of applications and 

petitions submitted with a Form G-28. According to USCIS, 

during a 90-day period, approximately 15-16 percent of 

filings to the lockbox receipting facilities were submitted with 

a Form G-28. USCIS further estimated that, of that volume, 

less than five percent of Forms G-28 were rejected. USCIS 

Service Center Operations estimates that approximately 

two-thirds of its direct-filed petitions and applications 

were submitted with a Form G-28; its primary caseload of 

employment-based filings tends to be prepared by attorneys. 

USCIS procedures are to leave the form in the file without 

sending notice of rejection to the attorney, and the agency 

does not capture statistics on Form G-28 rejections.506

506 Information provided by USCIS (Mar. 4, 2015).

Identified Issue

Stakeholders also have raised issues regarding USCIS 

processing and pairing of Form G-28 submitted after the 

initial filing of an application or petition. Additionally, 

withdrawal of representation while a case is pending with 

USCIS continues to be a challenge. Until these issues 

are resolved by an electronic or other dedicated portal 

for entering and withdrawing as counsel of record, these 

problems have to be addressed in USCIS mailrooms where 

correspondence, including a newly filed Form G-28, are 

connected to a pending case and then captured in USCIS 

systems. In discussions with the Ombudsman, USCIS urged 

attorneys submitting Form G-28 subsequent to the filing of 

an application or petition to include the receipt number with 

the new attorney notice form. The Ombudsman believes 

that these issues are operational and unrelated to USCIS 

policy pertaining to Form G-28 acceptance or withdrawal 

of representation.

When USCIS fails to record a Form G-28, the attorney 

does not receive notices and other correspondence from 

USCIS. Applicants and petitioners may be relying on their 

attorney to receive secure documents, as well as explain 

communications from USCIS. Additionally, NCSC and 

officials at local offices will not provide case status or other 

information to the attorney because he or she does not 

appear as the attorney of record, as indicated by the USCIS 

systems. Attorneys then may request assistance from the 

Ombudsman or Congressional offices.

Conclusion

While a review of and adherence to mailroom procedures, 

as well as quality assurance efforts, related to Form G-28 

acceptance and withdrawal would help ameliorate this 

issue, USCIS also could consider an electronic portal or 

dedicated mailbox specifically for the submission of Forms 

G-28 and withdrawal of representation. Doing so would 

help address the difficulties of connecting Forms G-28 

submitted as stand-alone correspondence to USCIS service 

centers with pending cases, help prevent Forms G-28 from 

getting misplaced or lost among the high volume of service 

center correspondence, and shorten the time for mailroom 

processing and data entry of information for the new 

attorney of record or the withdrawal of representation.

Calculating Processing Times

Responsible USCIS Offices: Office of Performance 

and Quality and the Customer Service and Public 

Engagement Directorate

The Ombudsman has previously reported on USCIS 

processing times and their impact on customer service. 

Both USCIS and the Ombudsman use the processing times 

posted on USCIS’ website to manage customer inquiries 

and make decisions that impact customer service.507 

When posted processing times do not accurately reflect 

actual processing times, those seeking immigration 

benefits naturally become frustrated, are unable to make 

personal or professional plans, and make inquiries to 

USCIS through the NCSC and at InfoPass appointments, 

as well as seek case assistance from the Ombudsman and 

Congressional offices. The Ombudsman has brought these 

concerns to USCIS, and urges the agency to consider new 

approaches to calculating case processing times that more 

accurately convey to individuals and employers how long 

a case will take to be adjudicated and where the case is 

within the processing queue.

507 See USCIS Webpage “e-Request;” https://egov.uscis.gov/e-Request/Intro.

do?locale=en_US (accessed Jan. 2, 2014).

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5.4 Example of USCIS Inventory and Cycle Time Calculation

MONTH MONTHLY 

RECEIPTS

MONTHLY

COMPLETIONS

END OF THE MONTH 

PENDING BALANCE

CYCLE TIME 

(IN MONTHS)

Feb 15 500 500 2,000 4.0

Jan 15 500 750 2,000 4.0

Dec 14 500 500 2,250 4.5

Nov 14 500 250 2,250 4.5

Oct 14 500 500 2,000 4.0

Background

USCIS’ Office of Performance and Quality (OPQ) 

calculates processing time goals, also referred to as “cycle 

times.” The calculation uses the number of cases pending 

with the responsible USCIS office or service center 

against the monthly completion rate,508 rather than real 

time adjudications data. The calculated processing time 

provides an estimate of the elapsed time associated with 

specific types of cases (e.g., Form N-400, Application 

for Naturalization or Form I-485) that are pending with 

USCIS. Upon publication of the 2007 fee rule, USCIS 

established new processing time goals.509

508 Information provided by USCIS (Oct. 15, 2014). 509 “USCIS Fee Schedule; Final Rule,” 75 Fed. Reg. 58962 (Sept. 24, 2010).

USCIS calculates the cycle time for a particular application 

or petition type by subtracting the number of cases received 

each month from the total number of pending cases. Take 

for example, a USCIS program with an active inventory of 

2,000 cases. If the receipt rate matches the completion rate, 

e.g., 500 cases are completed each month and 500 cases 

are received each month, the program would set a 4 month 

processing time goal. If the completion rate or receipt 

rate does not equal each other, e.g., the program receives 

500 cases and completes 250 cases, the cycle time would 

change. See Figure 5.4 for an example.510 

510 Information provided by USCIS as an example (Oct. 15, 2014).

USCIS’ website displays charts with the processing time 

goals for most form types adjudicated at field offices and 

service centers.511 If the field office or service center is 

meeting its processing time goal, the chart will list the 

processing time in months (e.g., 6 months). If the office 

has fallen behind its processing time goal, the chart will 

list the filing date of the last case that the office completed 

511 USCIS Webpage, “USCIS Processing Time Information;” https://egov.uscis.

gov/cris/processTimesDisplayInit.do (accessed Apr. 2, 2015).

before updating the chart.512 For example, the USCIS 

Chicago Field Office lists its processing times for three 

form types: Form N-400; Form I-485; and Form N-600, 

Application for Certificate of Citizenship. As shown in 

the chart below, the Chicago Field Office is experiencing 

processing delays for Forms N-400 and I-485, and lists the 

date of applications they are currently adjudicating as of 

February 28, 2015. The Chicago Field Office is meeting 

or exceeding its processing time goal for Form N-600 

applications and, therefore, lists the 5 month processing 

time goal for this type of application.513 See Figure 5.5,

Processing Time Information for Chicago Field Office. 

512 This date would not, however, account for cases that are considered to fall 

outside normal processing because they require additional agency review, 

such as extended background checks or investigations conducted through or 

on behalf of other agencies. 513 Information provided by USCIS (Apr. 3, 2015). See also USCIS Webpage, 

“USCIS Processing Time Information;” https://egov.uscis.gov/cris/

processTimesDisplayInit.do (accessed May 11, 2015).

The posted processing times determine when a customer may 

file a service request with the NCSC. It also affects when the 

customer may file a request with the Ombudsman.514

514 Ombudsman Webpage, “Frequently Asked Questions” (Jan. 29, 2015); http://

www.dhs.gov/cisomb-faqs (accessed May 7, 2015).

In the context of certain concurrent filings, the processing 

times for each form must be aggregated to determine when 

USCIS is scheduled to complete the adjudication. For 

example, the NSC posts a processing time goal for Form 

I-140, Immigrant Petition for Alien Worker and Form 

I-485. As of April 5, 2015, using data from January 31, 

2015, the NSC was adjudicating Form I-140 petitions in 4 

months and adjudicating Form I-485 employment-based 

applications filed before September 16, 2014 (assuming a 

current priority date). USCIS’ website does not make clear 

that these processing times must be added together before 

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86 | 

5.5 Processing Time Information for Chicago Field Office

FORM FORM 

NAME

PROCESSING 

TIMEFRAME

I-485

Application to Register 

Permanent Residence or 

to Adjust Status

April 28, 

2014

N-400 Application for Naturalization September 8, 

2014

N-600 Application for Certification of 

Citizenship 5 Months

Source: USCIS Webpage, “USCIS Processing Time Information” (Feb. 28, 2015).

the adjudication is completed and the applicant receives a 

final decision for the concurrently-filed I-485 application.515

515 In another example, on its Processing Times Webpage, USCIS published the 

following announcement pertaining to the DACA program: “Please note that 

the 90-day period for adjudicating Form I-765 category (c)(33) filed together 

with Form I-821D, requesting deferred action for childhood arrivals, does 

not begin until we have made a decision on your request for deferred action.” 

USCIS Webpage, “USCIS Processing Time Information;” https://egov.uscis.

gov/cris/processTimesDisplayInit.do (accessed Apr. 21, 2015).

Ongoing concerns

Stakeholders continue to report substantial confusion 

with USCIS processing times. The Ombudsman brought 

these concerns to USCIS’ attention in April 2014 through 

an informal recommendation and discussed them in 

the 2014 Annual Report.516 Following conversations, 

USCIS convened a working group to consider new 

approaches to calculating case processing times. The 

Ombudsman recently sought to continue discussions with 

USCIS; however, the agency responded that it will not be 

making near-term changes, and once Transformation has 

successfully been accomplished, the electronic process 

will be used to provide more accurate processing time 

information to applicants and petitioners.

516 Ombudsman’s Annual Report 2014, pp. 49-51.

Conclusion

The Ombudsman continues to urge USCIS to review how 

it publishes its processing times. Providing processing 

times which accurately reflect the actual length of 

adjudications informs customers of factors such as the 

percentage of applications or petitions completed within 

the posted processing time and would offer customers 

more transparency. The USCIS Office of Transformation 

Coordination (OTC) anticipates improvements in its 

ability to report accurate processing times but this will not 

take effect in the near future. Greater clarity is needed 

into how the agency processes concurrently filed forms 

and how processing times should be interpreted in these 

cases. Posting appropriate caveats about concurrent filing 

and aggregating processing times or the need to calculate 

additional time where an RFE is issued would assist in 

managing expectations for those seeking benefits and 

augment their understanding of why the benefit has not been 

completed in the posted processing time. In the end, these 

steps will reduce customer inquiries.

Transformation: 

Modernizing USCIS Systems, 

Case Processing, and 

Customer Service 

Responsible USCIS Office: Office of 

Transformation Coordination

USCIS’ effort to reengineer business processes from 

paper-based adjudications to an electronic environment is 

known as “Transformation.”517 By March 2015, 1.1 million 

customers had used available Transformation processes, 

such as setting up user accounts, paying the immigrant 

visa fee, filing for immigration benefits, or tracking 

applications and petitions through the USCIS ELIS.518 

Long before the majority of form types are scheduled to 

be available through Transformation, however, the agency 

is significantly re-designing its new system’s architecture, 

and has just temporarily discontinued the electronic filing 

in USCIS ELIS of Forms I-539, Application to Extend/

Change Nonimmigrant Status and I-526, Immigrant 

Petition by Alien Entrepreneur. 

517 See generally USCIS Webpage, “USCIS ELIS” (Mar. 30, 2015); http://www.

uscis.gov/uscis-elis (accessed May 21, 2015). 518 USCIS Presentation, “Office of Transformation Coordination Program 

Management Review (PMR)” (Mar. 12, 2015).

Background: Features, Staffing, Costs, 

and Outreach

The OTC leads the agency’s reengineering efforts of its 

electronic environment. The Ombudsman observes agency 

work on new developments through USCIS Transformation 

Program Management Reviews, monthly meetings that 

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review planning activities, execution, and risk management, 

and include reports on milestones and achievements. 

USCIS Electronic Immigration System. In May 2012, 

USCIS launched the foundational online platform of 

the new system, the USCIS ELIS.519 Individuals and 

employers can access USCIS ELIS and create an account 

via a web portal that allows account users to check status 

updates, manage information, and undertake certain filing 

activity. These activities currently include payment of the 

immigrant visa fee; filing of Forms I-539, Forms I-526, 

and Forms I-90; and an online account-based document 

library for multiple filings by EB-5 immigrant investors. 

Customers who select to file Forms I-90 by paper are also 

provided instructions on how to access their new online 

customer account in USCIS ELIS to access case notices 

and update features.520

519 USCIS Webpage, “USCIS Launches Online Immigration System, USCIS 

ELIS” (May 22, 2012); http://www.uscis.gov/news/uscis-launches-onlineimmigration-system-uscis-elis (accessed May 21, 2015). 520 USCIS Webpage, “E-Filing Form I-90 Using USCIS ELIS” (May 14, 

2015); http://www.uscis.gov/uscis-elis/e-filing-form-i-90-using-uscis-elis

(accessed May 21, 2015). The USCIS Webpage states, “Beginning in April 

2015, USCIS will process all Form I-90 applications in USCIS’ Electronic 

Immigration System (USCIS ELIS). A USCIS online account gives you 

an opportunity to track the progress of your request electronically, even if 

you file a paper application. If you filed a paper Form I-90 with USCIS, 

but do not have an existing USCIS online account, an online account will 

be automatically created for you. If you filed a paper application, you will 

receive a USCIS Account Acceptance Notice with instructions on how to 

access your USCIS online account.” (Emphasis in original.) 

Attorney access to USCIS ELIS has been recently 

expanded. In response to stakeholder requests and the 

Ombudsman’s suggestion in the 2014 Annual Report,521

USCIS now allows attorneys or accredited representatives 

with a Form G-28 to submit fee payments on their clients’ 

behalf for Permanent Resident Card filings.522 By July 

2015, USCIS plans to provide a USCIS ELIS process for 

certain third parties to pay the immigrant visa fee.523

521 Ombudsman’s Annual Report 2014, p. 62. 522 Information provided by USCIS (Apr. 29, 2015). 523 Information provided by USCIS (Apr. 30, 2015).

Transformation Restructurings. Transformation was initially 

slated for completion in 2013. The program has, however, 

experienced numerous delays and cost.524 The following 

structural changes have most significantly reshaped USCIS’ 

approach to Transformation:

524 U.S. Government Accountability Report, “USCIS Transformation: 

Improvements to Performance, Human Capital, and Information Technology 

Management Needed as Modernization Proceeds,” GAO-07-1013R (Jul. 17, 

2007); http://www.gao.gov/assets/100/95013.pdf (accessed May 21, 2015); 

U.S. Government Accountability Report, “Immigration Benefits: Consistent 

Adherence to DHS’s Acquisition Policy Could Help Improve Transformation 

Program Outcomes,” GAO-12-66 (Nov. 2011), pp. 10, 16, 19, 30; http://www.

gao.gov/new.items/d1266.pdf (accessed May 21, 2015).

M Revision of the “marathon” IT development and 

contract model to more agile “sprints.” This approach 

utilizes incremental validation of program requirements, 

development, and testing. 

M Reevaluation of the USCIS ELIS front-end user 

experience resulted in new IT “architecture” and a 

revamping of back-end processing capabilities. The 

OTC has also reengineered the underlying storage and 

platform for USCIS ELIS to increase speed and storage 

capabilities. This reengineered system is referred to as 

“USCIS ELIS 2.”

The estimated total life-cycle costs to implement 

Transformation were increased in April 2015 from $2.6 

billion to $2.9-$3.1 billion, and development is currently 

expected to be completed in 2018.525 The development is 

funded entirely out of the Premium Processing fees charged 

by the agency.526

525 Information provided by USCIS (Apr. 30, 2015). 526 Information provided by USCIS (Apr. 29, 2015).

USCIS Adjudicators’ Experience with USCIS ELIS. In 

a 2014 internal survey, a majority of adjudicators scored 

USCIS ELIS system-usability in the mid-range. Common 

feedback included that the system “[m]et most needs with 

anomalies/slow operations” and “[m]eets some needs with 

some operations easy/major anomalies.” The next biggest 

number of adjudicators found it was “[n]ot helpful most 

of the time.”527 The same year, the OTC enhanced USCIS 

ELIS code and infrastructure in order to improve system 

speed by more than 200 percent.528 The OTC continues 

to send teams to the USCIS service centers where officers 

perform adjudications using USCIS ELIS to observe the 

systems in action and, to the extent possible, resolve issues in 

real-time.

527 Information provided by USCIS (Apr. 28, 2015). 528 Information provided by USCIS (Apr. 29, 2015).

Transformation and Case Status Updates. USCIS ELIS 

user-based accounts are now providing enrolled customers 

real-time updates on the status of their applications and 

petitions, as well as the ability to receive notices and 

decisions electronically. Applicants can also update 

appointment and address information. Previously 

submitted data is automatically populated for new filings. 

Outreach. USCIS conducts ongoing outreach to 

stakeholders related to Transformation. Between June 1, 

2014 and March 31, 2015, USCIS hosted 16 engagements 

on Transformation topics, 10 of which focused on the 

Form I-90 release and two of which focused on the EB-5 

community. These events included demonstrations and 

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training for individual customers, attorneys, international 

student advisors, business groups, and community-based 

organizations to address general questions on USCIS 

ELIS processes.529

529 Information provided by USCIS (Apr. 30, 2015).

Ongoing Concerns

At the same time these developments have assisted 

customers, new problems have arisen. Stakeholders have 

contacted the Ombudsman requesting assistance with 

resolving account set-up issues. In 2014, USCIS launched 

an online help form to assist with questions about USCIS 

ELIS,530 but this information is not easily accessible to 

users on USCIS’ website.

530 See USCIS Webpage, “ELIS Contact Us;” https://egov.uscis.gov/cris/

contactus (accessed May 21, 2015).

During the introduction of these first USCIS ELIS 

product lines, stakeholders have raised concerns regarding 

functionality and customer service responsiveness. 

When given the choice, they often choose to submit paperbased applications and petitions, evidently believing 

that there is limited benefit to filing via USCIS ELIS. 

Adjudicators have similarly expressed concerns pertaining 

to system usability.

Customer Usage. As user numbers exceed one million, the 

vast majority of which are required to use USCIS ELIS to 

submit the immigrant visa fee, the agency must continue to 

monitor customer satisfaction with filing on USCIS ELIS 

and the rate at which new customers opt for this over paper 

filing for the available benefits. Approximately 15 percent 

of all USCIS ELIS users participate in polling about their 

experience on an ongoing basis. As of March 2015, 88.6 

percent of this small cross-section of customers reported 

being “satisfied” with the platform.531 Ongoing monitoring 

of the customer usage is needed as USCIS ELIS user 

demand increases. 

531 USCIS Presentation, “Office of Transformation Coordination Program 

Management Review (PMR)” (Mar. 12, 2015).

A fraction of those filing Forms I-539 and I-526 choose to do 

so via USCIS ELIS. Since May 2012, the agency received 

a total of 472,061 Form I-539 filings, of which 20 percent 

(93,803) were filed through USCIS ELIS.532 The findings of 

532 Information provided by USCIS (Apr. 29, 2015). This figure represents all 

Forms I-539 filed with USCIS, including ones that could not be submitted 

electronically; USCIS ELIS is available for most form-types except customers 

requesting an extension of T visa or U visa status, which must be filed directly 

at the VSC.

a 2014 study conducted by USCIS are leading the service to 

consider the “the advantages and disadvantages to turning off 

the Form I-539 in USCIS ELIS.”533

533 Information provided by USCIS (Apr. 28, 2015).

The USCIS ELIS Form I-526 has gained almost no traction 

in the EB-5 Immigrant Investor community. In FY 2015, 

as of March 31, 2015, only 77 Forms I-526 petitions have 

been filed using USCIS ELIS. The OTC stated “lack of 

awareness” was the cause of the low utilization; due to this 

low level, the OTC is reviewing and weighing discontinuing 

this form in USCIS ELIS.534 Attorneys representing I-526 

petitioners have observed that they are not using USCIS 

ELIS for I-526 filings because the document upload process 

and restrictions do not easily allow them to organize and 

logically present the petition to USCIS.

534 Information provided by USCIS (Apr. 29, 2015).

Online Assistance. USCIS has a designated Customer 

Contact Center and USCIS ELIS Technical Help Desk for 

USCIS ELIS users.535 This information is on the USCIS 

ELIS website, but the Ombudsman could only locate it 

after a series of clicks that are not intuitive or user-friendly. 

At a minimum, making this information more prominent 

would greatly assist users in accessing help for their most 

common questions and problems. 

535 Id. USCIS stated that OTC has developed a “Customer Contact Center (CCC) 

to address USCIS ELIS inquiries. The CCC opened for business on October 

7, 2013 .... All the resources located at the CCC are 100 percent dedicated 

to USCIS ELIS customer inquiries. Staff at the CCC has increased to [18] 

.... Additionally, [USCIS] acquired a Technical Help Desk (THD) team to 

address USCIS ELIS technical issues. The [13] ELIS Technical Help Desk 

(THD) contractors ... assist USCIS ELIS customers who call with technical 

questions.”

Stakeholders seek assistance from the Ombudsman to 

try to resolve USCIS ELIS account initiation and other 

administrative issues. The Ombudsman has analyzed 

nearly 200 cases since FY 2014 in which USCIS ELIS 

customers repeatedly could not resolve failed Lawful 

Permanent Resident card deliveries. The majority of 

these cases showed customers had made multiple service 

requests via NCSC and had waited 6 months to a year for 

delivery. Individuals reported losing travel, employment, 

or educational opportunities because they did not timely 

obtain their cards. 

Oversight. In February 2015, the U.S. Government 

Accountability Office (GAO) designated the Transformation 

program “high-risk,” due to cost overruns, and launched a 

ANNUAL REPORT TO CONGRESS JUNE 2015
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

review of the day-to-day management of the OTC.536 The 

GAO report stated:

536 U.S. Government Accountability Report, “High-Risk Series: An Update,” 

GAO-15-290 (Feb. 11, 2015); http://www.gao.gov/assets/670/668415.pdf

(accessed May 21, 2015), p. 43. 

[I]t is unclear whether the department is positioned 

to successfully deliver [Transformation] 

capabilities. Its key requirements were approved 

in 2011, but in 2013 they were revised due to 

risks with the program’s approach. Since then, 

the program has produced a draft requirements 

document, but it has not yet demonstrated the 

extent to which it can meet any of the draft 

document’s six key capability requirements using 

its new system architecture. Further, between July 

2011 and September 2014, the program’s life-cycle 

cost estimate increased from approximately $2.1 

billion to approximately $2.6 billion. 

Conclusion

The Ombudsman continues to track customer feedback on 

Transformation and to assist customers who are unable to 

resolve their concerns directly with the Customer Contact 

Center and the USCIS ELIS Technical Help Desk.

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90 | ANNUAL REPORT TO CONGRESS JUNE 2015

Appendices

Recommendations Update

Ombudsman Recommendations to Improve the Quality and 

Consistency in Notices to Appear (NTAs)

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates, Office of 

Policy and Strategy, and Office of Chief Counsel

As noted in the 2014 Annual Report, the Ombudsman 

published recommendations titled Improving the Quality 

and Consistency in Notices to Appear (NTAs) on June 11, 

2014. On September 30, 2014, USCIS responded to these 

recommendations. 

Background

Under the Immigration and Nationality Act, USCIS, 

ICE and CBP may each initiate a removal proceeding by 

preparing and serving Form I-862, Notice to Appear on a 

respondent and the Immigration Court. While statutory 

and regulatory provisions outline the initiation, nature, 

and potential outcome of removal proceedings, policy 

memoranda make clear enforcement priorities; procedures 

for drafting and reviewing NTAs; and the proper exercise 

of prosecutorial discretion. In November 2011, USCIS 

released revised guidance on issuance of NTAs and referral 

of certain cases to ICE, focusing on DHS-established 

enforcement priorities, efficiency while enhancing national 

security, and public safety.537 In USCIS, a wide range 

of officials in asylum, field and service center locations 

may draft and issue NTAs. There is no requirement that 

these NTAs be reviewed and approved by attorneys in the 

USCIS Office of the Chief Counsel or in any other DHS 

legal program. Stakeholder and case assistance feedback 

537 See infra section “Executive Immigration Reform” of this Report for more on 

the new department-wide enforcement priorities announced by DHS and their 

implementation through the Priority Enforcement Program. 

indicates that the lack of attorney involvement in USCISgenerated NTAs has led to the issuance of unnecessary and 

inaccurate charging documents, creating additional work 

for ICE and hardship to individuals and families. The 

ensuing inefficiencies also undermine the intent of the 2011 

policy guidance of increased efficiency and coordination. 

The recommendations issued by the Ombudsman 

were designed to ensure that those placed into removal 

proceedings receive a full and fair hearing, including 

proper notice of all charges and a meaningful opportunity 

to respond.

Recommendations

To improve the quality and consistency of NTAs, and 

to ensure they are in compliance with DHS and USCIS 

policies, the Ombudsman recommended that USCIS:

1) Provide additional guidance for NTA issuance with input 

from ICE and the Executive Office for Immigration 

Review (EOIR);

2) Require USCIS attorneys to review NTAs prior to their 

issuance and provide comprehensive legal training; and

3) Create a working group with representation from ICE 

and EOIR to improve tracking, information-sharing, and 

coordination of NTA issuance.

USCIS Response to the Ombudsman’s 

Recommendations

On September 30, 2014, USCIS responded to the 

Ombudsman’s recommendations. USCIS stated that it 

concurred with most of the recommendations and outlined 

steps it has or will be taking as a result:

M USCIS sought input from ICE as it reviewed and updated 

its agency guidance for NTA issuance. This guidance 

remains under DHS review.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 91

M USCIS updated the NTA section of the Consolidated 

Handbook of Adjudications Procedures (CHAP) to 

clarify NTA issuance to P.O. Boxes. 

M USCIS stated that the “How to Issue an NTA” training 

module presentation is available agency-wide and that 

it is reviewing how to include this training as part of the 

component’s training program.

M USCIS stated that it would create a working group with 

ICE and EOIR to review the USCIS NTA production 

statistics captured by various USCIS systems and to 

recommend solutions to improve the issuance process.

In response to the second recommendation, USCIS stated 

that it “cannot concur with the recommendation regarding 

attorney review of all NTAs prior to issuance,” but will take 

the recommendation under advisement.
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The Ombudsman by the Numbers

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Requests for Case Assistance Comparison for the 2014 and 2015 Reporting Periods Received 

Regarding Forms I-821D (DACA), I-601, I-601A, and I-765

PRIMARY FORM 

TYPE

PRIMARY FORM TYPE NAME

2014 

REPORTING 

PERIOD

2015 

REPORTING 

PERIOD

PERCENT 

INCREASE 

IN 2015

I-821D* Consideration of Deferred Action for Childhood Arrivals 924 1,564 69.26%

I-601 Application for Waiver of Grounds of Inadmissibility 90 66 -26.67%

I-601A Application for Provisional Unlawful Presence Waiver 23 109 373.91%

I-765 Application for Employment Authorization 434 904 108.29%

*Includes initial and renewal DACA applications

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CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 

Homeland Security Act—

Section 452—Citizenship 

and Immigration Services 

Ombudsman

SEC. 452. CITIZENSHIP AND IMMIGRATION 

SERVICES OMBUDSMAN.

(a) IN GENERAL—Within the Department, there 

shall be a position of Citizenship and Immigration 

Services Ombudsman (in this section referred to as the 

‘Ombudsman’). The Ombudsman shall report directly 

to the Deputy Secretary. The Ombudsman shall have a 

background in customer service as well as immigration law.

(b) FUNCTIONS—It shall be the function of the 

Ombudsman—

1) To assist individuals and employers in resolving 

problems with the Bureau of Citizenship and 

Immigration Services;

2) To identify areas in which individuals and employers 

have problems in dealing with the Bureau of Citizenship 

and Immigration Services; and

3) To the extent possible, to propose changes in the 

administrative practices of the Bureau of Citizenship and 

Immigration Services to mitigate problems identified 

under paragraph (2).

(c) ANNUAL REPORTS—

1) OBJECTIVES—Not later than June 30 of each calendar 

year, the Ombudsman shall report to the Committee on 

the Judiciary of the House of Representatives and the 

Senate on the objectives of the Office of the Ombudsman 

for the fiscal year beginning in such calendar year. Any 

such report shall contain full and substantive analysis, in 

addition to statistical information, and—

(A) Shall identify the recommendation the Office of the 

Ombudsman has made on improving services and 

responsiveness of the Bureau of Citizenship and 

Immigration Services;

(B) Shall contain a summary of the most pervasive and 

serious problems encountered by individuals and 

employers, including a description of the nature of 

such problems;

(C) Shall contain an inventory of the items described in 

subparagraphs (A) and (B) for which action has been 

taken and the result of such action;

(D) Shall contain an inventory of the items described in 

subparagraphs (A) and (B) for which action remains to 

be completed and the period during which each item 

has remained on such inventory;

(E) Shall contain an inventory of the items described in 

subparagraphs (A) and (B) for which no action has been 

taken, the period during which each item has remained 

on such inventory, the reasons for the inaction, and 

shall identify any official of the Bureau of Citizenship 

and Immigration Services who is responsible for such 

inaction;

(F) Shall contain recommendations for such administrative 

action as may be appropriate to resolve problems 

encountered by individuals and employers, including 

problems created by excessive backlogs in the 

adjudication and processing of immigration benefit 

petitions and applications; and

(G) Shall include such other information as the Ombudsman 

may deem advisable.

2) REPORT TO BE SUBMITTED DIRECTLY—Each 

report required under this subsection shall be provided 

directly to the committees described in paragraph (1) 

without any prior comment or amendment from the 

Secretary, Deputy Secretary, Director of the Bureau 

of Citizenship and Immigration Services, or any other 

officer or employee of the Department or the Office of 

Management and Budget.

(d) OTHER RESPONSIBILITIES—The Ombudsman—

1) shall monitor the coverage and geographic allocation of 

local offices of the Ombudsman;

2) shall develop guidance to be distributed to all officers 

and employees of the Bureau of Citizenship and 

Immigration Services outlining the criteria for referral of 

inquiries to local offices of the Ombudsman;

3) shall ensure that the local telephone number for each 

local office of the Ombudsman is published and 

available to individuals and employers served by the 

office; and

4) shall meet regularly with the Director of the Bureau of 

Citizenship and Immigration Services to identify 

serious service problems and to present recommendations 

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for such administrative action as may be appropriate 

to resolve problems encountered by individuals 

and employers.

(e) PERSONNEL ACTIONS —

1) IN GENERAL—The Ombudsman shall have the 

responsibility and authority—

(A) To appoint local ombudsmen and make available at 

least 1 such ombudsman for each State; and

(B) To evaluate and take personnel actions (including 

dismissal) with respect to any employee of any local 

office of the Ombudsman.

2) CONSULTATION—The Ombudsman may consult 

with the appropriate supervisory personnel of the Bureau 

of Citizenship and Immigration Services in carrying out 

the Ombudsman’s responsibilities under this subsection.

(f) RESPONSIBILITIES OF BUREAU OF 

CITIZENSHIP AND IMMIGRATION SERVICES—

The Director of the Bureau of Citizenship and 

Immigration Services shall establish procedures 

requiring a formal response to all recommendations 

submitted to such director by the Ombudsman within 3 

months after submission to such director.

(g) OPERATION OF LOCAL OFFICES —

1) IN GENERAL—Each local ombudsman—

(A) shall report to the Ombudsman or the delegate thereof;

(B) may consult with the appropriate supervisory personnel 

of the Bureau of Citizenship and Immigration Services 

regarding the daily operation of the local office of 

such ombudsman;

(C) shall, at the initial meeting with any individual or 

employer seeking the assistance of such local office, 

notify such individual or employer that the local offices 

of the Ombudsman operate independently of any other 

component of the Department and report directly to 

Congress through the Ombudsman; and

(D) at the local ombudsman’s discretion, may determine 

not to disclose to the Bureau of Citizenship and 

Immigration Services contact with, or information 

provided by, such individual or employer.

(2) MAINTENANCE OF INDEPENDENT 

COMMUNICATIONS—Each local office of the 

Ombudsman shall maintain a phone, facsimile, and 

other means of electronic communication access, 

and a post office address, that is separate from 

those maintained by the Bureau of Citizenship and 

Immigration Services, or any component of the Bureau 

of Citizenship and Immigration Services.

Requests for Case Assistance: 

Scope of Assistance Provided 

to Individuals

The Office of the Citizenship and Immigration Services 

Ombudsman (Ombudsman’s Office), established by the 

Homeland Security Act of 2002, assists individuals and 

employers in resolving case problems with U.S. Citizenship 

and Immigration Services (USCIS). The Ombudsman’s 

Office also reviews USCIS policies and procedures, and 

recommends changes to mitigate identified problems in 

USCIS’ administrative practices.

Pursuant to this statutory authority, the Ombudsman’s 

Office reviews individual cases to provide assistance 

by examining facts, reviewing relevant data systems, 

and analyzing applicable laws, regulations, policies and 

procedures. After assessing each case in this manner, the 

Ombudsman’s Office may contact USCIS service centers, 

field offices, and other facilities to request that USCIS 

engage in remedial actions. If the Ombudsman’s Office is 

unable to assist, it will inform the individual or employer 

that the matter is outside the scope of the Ombudsman’s 

authority or otherwise does not merit further action.

The Ombudsman’s Office is not an appellate body 

and cannot question USCIS decisions that were made 

in accordance with applicable procedures and law. 

Additionally, the Ombudsman’s Office does not have 

the authority to command USCIS to reopen a case, or to 

reverse any decisions the agency may have made.

The Ombudsman’s Office is an office of last resort. 

Assistance should only be sought when an individual or 

employer has attempted to obtain redress through all other 

available means. Prior to requesting the Ombudsman’s Office 

assistance in a particular case, individuals and employers 

should make reasonable efforts to resolve any issues directly 

ANNUAL REPORT TO CONGRESS JUNE 2015
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with USCIS, using mechanisms such as the e-Service 

Request, National Customer Service Center, and InfoPass.

The jurisdiction of the Ombudsman’s Office is limited by 

statute to problems involving USCIS. The Ombudsman 

does not have the authority to assist with problems that 

individuals or employers experience with U.S. Customs 

and Border Protection (CBP), U.S. Immigration and 

Customs Enforcement (ICE), the U.S. Department of State 

(DOS), the Executive Office for Immigration Review 

(EOIR), or the U.S. Department of Labor (DOL). However, 

it may be possible for the Ombudsman’s Office to assist 

if the application involves both USCIS and another DHS 

component or government agency.

The Ombudsman’s Office provides case assistance to 

address the following procedural matters:

M Typographic errors in immigration documents

M Cases that are 60 days past normal processing times

M USCIS’ failure to schedule biometrics appointments, 

interviews, naturalization oath ceremonies, or 

other appointments

M Change of address and mailing issues, including 

non-delivery of notices of action and/or completed 

immigration documents (e.g., Employment Authorization 

Cards, Permanent Resident Cards, etc.), except where 

USCIS properly mailed the notice or document to the 

individual’s address on file and it was not returned

M Cases where the beneficiary may “age-out” of eligibility 

for the requested immigration benefit

M Refunds in cases of clear USCIS error

M Lost files and/or file transfer problems

The Ombudsman’s Office provides case assistance to 

address the following substantive matters:

M Clear errors of fact, or gross and obvious misapplication 

of the relevant law by USCIS in Requests for Evidence, 

Notices of Intent to Deny, and denials

M Applications and petitions that were improperly rejected 

by USCIS

M Ongoing, systemic issues that should be subjected to 

higher level review (e.g., the exercise of discretion, 

the misapplication of evidentiary standards, USCIS 

employees failing to comply with its policies, etc.)

M Cases where an individual is in removal proceedings 

before the Immigration Court and has an application or 

petition pending before USCIS that may have a bearing 

on the outcome of removal proceedings

M Certain cases involving U.S. military personnel and 

their families (e.g., citizenship for military members 

and dependents; family-based survivor benefits for the 

immediate relatives of armed forces members, etc.)

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Ombudsman Request for 

Case Assistance Process

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Acronyms

AAO Administrative Appeals Office 

AC21 American Competitiveness in the 21st Century Act 

AFM Adjudicator’s Field Manual 

AOR Affidavit of Relationship

BIA Board of Immigration Appeals

CAM Central American Minors

CSC California Service Center 

DACA Deferred Action for Childhood Arrivals

DAPA Deferred Action for Parents of Americans 

and Lawful Permanent Residents

DHS U.S. Department of Homeland Security 

DOL U.S. Department of Labor 

DOJ U.S. Department of Justice 

DOS U.S. Department of State 

EAD Employment Authorization Document 

ELIS Electronic Immigration System

EOIR Executive Office for Immigration Review 

ETA Employment and Training Administration

FLETC Federal Law Enforcement Training Center

FY Fiscal Year

GAO U.S. Government Accountability Office 

HAB Humanitarian Affairs Branch

HFRP Haitian Family Reunification Parole

HSA Homeland Security Act

HSI Homeland Security Investigations

ICE U.S. Immigration and Customs Enforcement 

INA Immigration and Nationality Act 

INS Immigration and Naturalization Service 

IOM International Organization for Migration

MAVNI Military Accessions Vital to the National Interest 

MOU Memorandum of Understanding 

NACARA Nicaraguan Adjustment and 

Central American Relief Act

NBC National Benefits Center 

NCSC National Customer Service Center 

NOID Notice of Intent to Deny 

NRC National Records Center 

NSC Nebraska Service Center 

NTA Notice to Appear 

NVC National Visa Center 

OIDP Office of Intake and Document Production

OIG Office of Inspector General 

ONPT Outside Normal Processing Time 

OOH Occupational Outlook Handbook

OPT Optional Practical Training

OTC Office of Transformation Coordination

PRA Paperwork Reduction Act

PREA Prison Rape Elimination Act

RAIO Refugee, Asylum, and International Operations

RFE Request for Evidence 

SAVE Systematic Alien Verification for Entitlements 

SIJ Special Immigrant Juveniles

SMI Secure Mail Initiative 

SRMT Service Request Management Tool

TPS Temporary Protected Status 

TSC Texas Service Center 

TVPRA Trafficking Victims Protection 

Reauthorization Act 

UAC Unaccompanied Alien Children

USCIS U.S. Citizenship and Immigration Services 

USPS U.S. Postal Service 

VAWA Violence Against Women Act

VSC Vermont Service Center 

99
Citizenship and Immigration Services Ombudsman 

U.S. Department of Homeland Security

Mail Stop 0180

Washington, DC 20528

Telephone: (202) 357-8100

Toll-free: 1-855-882-8100

http://www.dhs.gov/cisombudsman

Send your comments to: cisombudsman@hq.dhs.gov