Annual Report 2016

Citizenship and Immigration Services

Ombudsman

June 29, 2016

Annual Report 2016

Citizenship and Immigration Services

Ombudsman

June 29, 2016
ii | ANNUAL REPORT TO CONGRESS JUNE 2016
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, 2016

The Honorable Charles E. Grassley

Chairman

Committee on the Judiciary

United States Senate

Washington, DC 20510

The Honorable Robert W. Goodlatte

Chairman

Committee on the Judiciary

United States House of Representatives

Washington, DC 20515

The Honorable Patrick J. Leahy

Ranking Member

Committee on the Judiciary

United States Senate

Washington, DC 20510

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 2016 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 2016

Message from the Ombudsman

For almost 4 years I have 

had the immense honor of 

serving as the Citizenship 

and Immigration Services 

Ombudsman. As I look 

back on my service, I am 

mindful of our mission 

and proud of how hard 

we work to advance it. 

I have been privileged 

to visit a sizeable part 

of U.S. Citizenship and 

Immigration Services’ 

(USCIS) operations, meeting hundreds of USCIS officers 

and staff and seeing firsthand their proven commitment 

to public service and to immigrant communities around 

the country and abroad. During this time, I have also 

hosted with the Ombudsman staff over 500 stakeholder 

engagements to gain a deeper understanding of the issues 

that USCIS’ customers face today. 

Our immigration system has evolved in impressive ways, 

with USCIS rising to meet national security and fraud 

detection challenges, engaging effectively through local 

field offices, and, most recently, working to address 

the unprecedented credible fear and affirmative asylum 

backlogs. At the same time, the agency has allocated 

vast resources to refugee processing in the Middle East 

and to the critical national security activities involved 

in that effort. USCIS also created the Central American 

Minors program to offer much-needed safe passage to the 

United States to children from El Salvador, Guatemala, 

and Honduras. Over the past 5 years, USCIS has also 

planned for and delivered on essential executive action 

solutions in the absence of comprehensive immigration 

reform.*

 Throughout that time, the agency has been 

responsive to Congressional oversight, with hearings 

focused lately on refugee processing, executive actions, the 

use of social media, and alleged fraud among prospective 

immigrant investors. 

USCIS, however, still has much work to do to resolve 

longstanding systemic issues that compromise efficiency, 

quality of adjudications, and customer service. As a former 

Immigration and Naturalization Service counsel, seasoned 

immigration practitioner, and now as the Ombudsman, 

I have seen the detrimental impacts of inadequate 

customer service, delays in processing times, inconsistent 

adjudications, and ineffective policymaking. These are 

meaningful problems and should be treated as such. 

With a myriad of competing priorities, the agency has made 

insufficient progress to address processing times delays 

(critically on the rise in the past 2 years); inconsistencies 

in adjudications across service centers; substantial failure 

to meet the 90-day regulatory adjudication deadline for 

employment authorization documents; and the continued 

issuance of overly burdensome and unnecessary requests 

for evidence. I believe USCIS will achieve its full potential 

as a 21st century immigration agency when its customer 

service and adjudicatory functions are consistently 

prioritized, resourced, and afforded equal oversight.

Consequently, as problems persist, the Ombudsman plays 

an important, independent role in ensuring that USCIS 

is responsive to its customers. At the Ombudsman’s 

office, we work tirelessly to achieve the mission by 

providing expert case assistance to the public and by 

monitoring trends that reflect the existence and emergence 

of serious and pervasive issues within the agency. We 

formulate recommendations to USCIS—both formally 

and informally—to resolve those problems, and report to 

Congress areas where the agency still needs to improve. 

The Ombudsman staff accomplishes this hefty mission with 

both dedication and resilience. It does so collaboratively 

and thoughtfully, caring for the customer often in ways he 

or she may not have experienced during the immigration 

process. One customer spoke to this hallmark of our 

work—that behind every application there is an individual, 

a family, an employee or an employer who deserves a fair 

process and timely case resolution: 

* As we finalized this Report, the U.S. Supreme Court issued its decision in 

U.S. v. Texas, 579 U.S. ___ (June 23, 2016), leaving the court of appeals ruling 

in place and prohibiting implementation by U.S. Department of Homeland 

Security of the Deferred Action for Parents of American and Lawful 

Permanent Residents program (DAPA) and the expansion of the Deferred 

Action For Childhood Arrivals (DACA) program. The current DACA policy, 

however, remains in place.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | v

I want to say a big thank you for sending a reply 

as promp[tly] as you did. It is nice to know that 

there is an organization like yours working with 

the immigration office to help applicants with 

their immigration problems with USCIS. This is 

the first time...that I feel there are people in the 

immigration office who really care about me as an 

applicant....Your email means a lot to me and has 

given me hope for my application.

During my tenure as Ombudsman, I have witnessed our 

small team successfully manage a 270 percent increase 

in requests for case assistance while timely meeting our 

reporting obligations; working to resolve complex policy 

issues; conducting over 100 stakeholder engagements 

annually; and hosting for 5 years in a row one of the most 

constructive immigration policy conferences in the country. 

I applaud the Ombudsman team for their dedication, 

creativity, and deep desire to show the public the very best 

of government. This Annual Report reflects their efforts 

over the past year to respond to rising and longstanding 

challenges in the delivery of immigration services. 

I thank both Secretary Jeh Charles Johnson and Deputy 

Secretary Alejandro Mayorkas for their steadfast support of 

the Ombudsman’s mission and its work. I would also like 

to thank USCIS Director León Rodríguez and the agency’s 

Headquarters and field leadership for their continued 

collaboration to make the agency more effective. 

Finally, the Ombudsman’s work is strengthened by the 

active participation of our knowledgeable stakeholders. 

They routinely identify and share information on 

emerging trends, keeping us apprised where things go 

right and where improvement is needed. Their continued 

engagement is integral to our full understanding of the 

issues and their impact on the USCIS customer; we 

thank them for their feedback and dedication. We also 

work daily with dedicated officers throughout USCIS 

who share in our goal of providing immigration services 

grounded on fair treatment and superlative customer 

service. That the agency is able to perform its functions 

on a daily basis is due to their dedication to duty. All 

of these individuals inspire hope that, working together, 

we can develop consistent and lasting excellence in our 

immigration system.

Sincerely,

Maria M. Odom

Citizenship and Immigration Services Ombudsman
vi | ANNUAL REPORT TO CONGRESS JUNE 2016

Executive Summary

The Office of the Citizenship and Immigration Services 

Ombudsman’s (Ombudsman) 2016 Annual Report 

contains:

 An overview of the Ombudsman’s mission and services;

 A review of U.S. Citizenship and Immigration Services 

(USCIS) programmatic and policy challenges during 

this reporting period; and

 A detailed discussion of pervasive and serious 

problems, recommendations, and best practices in 

humanitarian, employment, and family areas, as well as 

customer service and integrity. 

Ombudsman’s Office Overview

In the 2016 reporting period (April 1, 2015 to March 31, 

2016), the Ombudsman received 9,448 requests for case 

assistance, a 25 percent increase from the 2015 reporting 

period. Overall, 29 percent of the requests were for 

employment-based matters; 28 percent for humanitarianbased matters; 23 percent for family-based matters; and 

20 percent for general immigration matters, such as 

applications for naturalization. Notably, the Ombudsman 

received 1,288 requests for case assistance involving 

applications for employment authorization—a 42 percent 

increase from the prior reporting period. 

The Year in Outreach

The Ombudsman conducted over 121 stakeholder 

engagements in the reporting period, reaching a diverse 

multitude of stakeholders in regions across the United 

States. The Ombudsman also created a social media 

presence through Facebook in November 2015. To inform 

stakeholders of new initiatives and receive feedback on 

a variety of topics and policy trends, the Ombudsman 

hosted nine public teleconferences and held a Fifth Annual 

Conference, featuring Secretary of Homeland Security 

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

discussion with USCIS Director León Rodríguez. 

DHS Blue Campaign

As Chair of the Blue Campaign Steering Committee (Blue 

Campaign), the Department’s unified voice for combatting 

human trafficking, Ombudsman Odom is at the forefront of 

these efforts. The Blue Campaign brings together resources 

and expertise from across DHS Components, harnessing 

partnerships with a network of other governmental and 

non-governmental organizations. The Ombudsman 

strengthens these initiatives by providing ongoing subject 

matter expertise and organizing stakeholder events and 

trainings addressing pressing trafficking issues. The 

Ombudsman also provides case assistance to individuals 

seeking to resolve problems with applications and petitions 

for humanitarian immigration relief, including immigrant 

victims of trafficking. 

Key Developments and 

Areas of Focus

Humanitarian

Asylum Backlogs and Continuing Assessment of Problems

The volume of affirmative asylum cases pending at USCIS 

has reached well over 100,000 and continues to grow. 

Sustained surges in high-priority credible and reasonable 

fear claims and a boom in new affirmative asylum filings 

drive this backlog. Despite significant efforts by the 

Refugee, Asylum and International Operations Directorate’s 

Asylum Division to respond to this pending caseload, 

such as doubling the Asylum Officer corps, the backlog 

of cases and processing delays continues to expand. 

The Ombudsman encourages USCIS to provide greater 

transparency surrounding the backlog, and is committed 

to exploring additional ways to efficiently respond to 

worsening processing delays and promote measures to ease 

the hardships stemming from these delays. 

Central American Minors Refugee/Parole Program

The Ombudsman has conducted extensive engagement 

with stakeholders and government officials in the United 

States and abroad in connection with the Central American 

Minors (CAM) Refugee/Parole program. During the 

Ombudsman’s recent trip to Mexico, El Salvador, and 

Guatemala, the Ombudsman met with foreign governments, 

USCIS and DOS officials, humanitarian organizations, 

and at-risk youth, as well as observed Resettlement 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | vii

Support Center pre-screenings and USCIS interviews of 

CAM applicants. The Ombudsman anticipates issuing 

an assessment and recommendations pertaining to the 

program’s operational structure and effectiveness under 

current eligibility requirements. Stakeholders have 

reported and the Ombudsman has observed a number of 

shortcomings with the CAM program, including lengthy 

processing times; lack of standardized expedite procedures, 

safety protocols, and dedicated funding; narrow eligibility 

criteria; prohibitive upfront costs for DNA testing; 

and limited means for expanding public awareness of 

the program. 

The Haitian Family Reunification Parole Program 

Stakeholders have expressed concerns too few Haitians 

are eligible for the program and face obstacles impeding 

realization of the program’s goals, namely receipt of the 

invitation to apply for the program and prohibitive filing 

fees. The Ombudsman has monitored the program’s 

implementation and conducted engagement with the 

Haitian Family Reunification Parole Program (HFRP) 

stakeholders during the reporting period. As of December 

31, 2015, USCIS had only adjudicated 590 applications 

of the 3,789 pending applications. The Ombudsman will 

continue to track HFRP’s progress and explore potential 

measures to strengthen the number of beneficiaries 

benefitting from the program, including allowing 

beneficiaries with later priority dates to qualify and 

increasing outreach in both the United States and Haiti.

The Deferred Action for Childhood Arrivals Program

Since implementation late 2012, the Deferred Action 

for Childhood Arrivals (DACA) program has allowed 

approximately 723,282 recipients to live and work in the 

United States without fear of removal. The Ombudsman 

continues to recommend USCIS offer the option of a 

substantive review of denials based on grounds other than 

the administrative errors listed in the DACA FAQs. A 

number of requests for case assistance also revealed DACA 

recipients unknowingly traveled outside the United States 

after receiving approved advance parole documents, but 

before the effective date or “date issued.” The Ombudsman 

proposes clarifying the “permissible period” for travel 

to ensure DACA grantees understand the importance of 

these dates. 
viii | ANNUAL REPORT TO CONGRESS JUNE 2016

Provisional Waivers 

On July 22, 2015, USCIS published a proposed rule 

expanding the Provisional Waiver program to allow all 

individuals statutorily eligible for the unlawful presence 

waiver, who can establish extreme hardship to any 

qualifying relative, to participate in the program. On 

October 7, 2015, USCIS issued draft guidance pertaining 

to the “extreme hardship” standard for public comment. 

The Ombudsman welcomes the proposed regulatory 

amendments and much needed draft policy guidance. The 

Ombudsman also continues to urge USCIS to offer the 

option of a substantive review of provisional waiver denials 

essential to achieving full program integrity.

Special Immigrant Juveniles

For more than 25 years, the Special Immigrant Juvenile 

(SIJ) program has protected vulnerable youth in this 

country who cannot be reunified with one or both parents 

as a result of abuse, neglect, abandonment, or a similar 

basis under state law. Congress has entrusted state courts to 

make these determinations while acknowledging only DHS 

can issue immigration benefits. On December 11, 2015, 

the Ombudsman issued a second formal recommendation 

on the SIJ program, addressing a number of questionable 

practices by USCIS, including the re-evaluation of state 

court orders; burdensome requests for evidence; and 

interviews that are not age-appropriate. In response, 

USCIS has assured it will take some steps to address these 

concerns; the Ombudsman will continue monitoring the 

program improvements promised. The Ombudsman is also 

particularly concerned with the significant retrogression 

of SIJ visa numbers (EB-4 category) announced in the 

May 2016 Visa Bulletin for applicants from El Salvador, 

Guatemala, and Honduras and will continue to engage 

with the agency and stakeholders regarding the problems 

emanating from retrogression. 

Interagency, Customer Service, 

and Process Integrity 

Processing Times and Processing Delays 

Over the last 3 reporting years, the Ombudsman has seen 

increases in requests for case assistance to address USCIS 

processing time delays. The Ombudsman urges USCIS 

to address lengthening processing times as a serious and 

pervasive issue. The Ombudsman believes, as a fee-forservice agency, USCIS must develop and implement a 

process accurately reflecting the time it takes to process 

applications and petitions from receipt to completion. 

USCIS has announced its exploration of and commitment 

to more accurate processing times based on actual, real-time 

data. The agency should immediately address the problems 

that are preventing it from meeting the processing time 

goals promised in its 2007 final fee rule, to which USCIS 

recently recommitted. 

Background Checks and Clearances 

Stakeholders continue to experience case processing delays 

caused by background checks and other types of security 

screening that can last several years. While these checks 

are essential features of immigration processing, extended 

delays and the lack of transparency about the process 

causes significant distress, family separation, and other 

hardships. The Ombudsman recommends USCIS create 

a unified monitoring process to follow up on processing 

of background and security checks, in particular pending 

Federal Bureau of Investigation (FBI) name checks and 

ICE investigations, and prioritize the processing of those 

in which security is an identified issue. Where cases will 

remain on review for indefinite periods, USCIS should 

give the applicant or petitioner notice and an opportunity 

to pursue alternative options for relief and protection, 

including withdrawing the application. 

Delivery of Secure Documents

Stakeholders continue to encounter problems with the 

timely receipt of secure documents from USCIS. Every 

year USCIS sends millions of secure documents to 

applicants and their legal representatives through the 

U.S. Postal Service (USPS). While it is understandable 

USCIS seeks to closely control the issuance of secure 

documents to reduce the potential for fraud, requiring the 

applicant to file a new application and repay the fees when 

USCIS or USPS is the cause of a delivery issue, as often 

happens, is inherently unfair. The Ombudsman continues 

to recommend USCIS use prepaid couriers or certified 

mail to track delivery of secure documents and be more 

proactive in notifying customers when secure documents 

are returned. 

Transformation

Transformation is USCIS’ multi-year effort to digitize its 

paper-based filing and adjudication systems into a single 

electronic environment. USCIS processed timely and 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | ix

accurately the majority of the limited available e-filings, 

but stakeholders encountered challenges locating or 

obtaining processing times and obtaining timely customer 

service. Of greater concern is the release in March 2016 

of a major audit report by DHS’s Office of the Inspector 

General, reviewing the “deeply troubled” Transformation 

program and noting USCIS has resisted “independent 

oversight” and “minimized the shortcomings of the 

program.” The Ombudsman recommends USCIS improve 

its customer service, including examining ways to increase 

responsiveness to user feedback and allow for more external 

user involvement to implement holistic approaches. 

Consular Returns

Stakeholders whose approved petitions are returned to 

USCIS by DOS experience uncertainty and ongoing 

challenges due to resource limitations, poor interagency 

communication, and antiquated file transmission between 

USCIS and DOS. The Ombudsman recommends the 

receiving USCIS service center verify the file is in the 

right place before storing the file, and send notice to the 

petitioner with the location of the file. Most importantly, 

the Ombudsman again calls upon USCIS to establish 

and post on its website agencywide processing goals for 

consular returns. The agency should also provide clear 

guidance to the public regarding the process and timeline 

for case resolution. 

Business and Employment

Employment-Based Immigrant Petitions

During the reporting period, USCIS has taken a number 

of steps to implement the President’s Immigration 

Accountability Executive Action for businesses 

and immigrant workers. On November 20, 2015, 

the agency published the draft policy memorandum 

Determining Whether a New Job is in “the Same or 

a Similar Occupational Classification” for Purposes 

of Section 204(j) Job Portability; and a Notice of 

Proposed Rulemaking (NPRM) on December 31, 

2015, to implement certain provisions of the American 

Competitiveness in the Twenty-First Century Act of 

2000 (AC21). USCIS has still not changed its position 

that foreign worker beneficiaries lack legal standing in 

the petition process despite mounting case law to the 

contrary. USCIS must reconsider its position on Form 

I-140, Immigrant Petition for Alien Worker employee 

standing and make a corresponding regulatory change, 

fully aligning its policy to the letter and spirit of AC21 to 

provide certain qualified employees greater employment 

mobility while awaiting the completion of the permanent 

residence process.

EB-5 Immigrant Investor Program

As reported in past years, processing times for EB-5 

petitions continue to degrade. Stakeholders shared 

concerns regarding USCIS’ Investor Program Office’s 

(IPO) regulatory authority to administer the program; 

outdated regulatory requirements; program integrity in 

light of allegations and findings of fraud or noncompliance 

with other federal laws; the manipulation of Targeted 

Employment Areas through gerrymandering; and the 

inconsistent implementation of policy. The Ombudsman 

will monitor regulatory and statutory changes to the 

program initiated by IPO and Congress, and will continue 

to address stakeholders concerns with the quality, 

consistency, and timeliness of IPO’s adjudication of EB-5 

applications and petitions. 

H-2 Temporary Workers and Labor Trafficking

During the reporting period, the Ombudsman heard from 

workers’ rights organizations regarding the vulnerabilities 

and exploitation of H-2 workers sponsored by U.S. 

employers. Exploitation takes the form of involuntary 

servitude or forced labor, and can result in other 

workplace-based crimes. During this reporting period, 

the Ombudsman participated in interagency activities 

to address stakeholder concerns, and worked to resolve 

requests for case assistance by workers encountering 

challenges in their pursuit of protective immigration 

benefits. The Ombudsman will continue to explore ways 

USCIS can collaborate with federal agency partners to 

address employee exploitation and human trafficking, 

and will convene DHS representatives to discuss how to 

enhance protections within the Department’s authorities. 

H-2B Temporary Non-Agricultural Workers

Stakeholders continue to assert the H-2 program is overly 

regulated and bureaucratic, causing significant challenges 

in hiring foreign workers to fill temporary agricultural (H2A) and non-agricultural (H-2B) jobs. Recent regulatory 

and legislative developments have exacerbated conditions 

affecting both employers and employees contributing to an 

overall increase, at least temporarily, in H-2B processing 

delays. The Ombudsman will continue to monitor 

stakeholder concerns about the treatment of both employers 

and employees in the H-2B program to promote improved 

program functionality and address abuse concerns. 
x | ANNUAL REPORT TO CONGRESS JUNE 2016

Additionally, the Ombudsman will continue to make 

recommendations, as appropriate, to promote more effective 

interagency communication to facilitate the lawful and 

timely entry of temporary workers into the United States.

Requests for Evidence

As in previous years, the Ombudsman continues to monitor 

the rates at which Requests for Evidence (RFEs) are issued 

at the Vermont Service Center (VSC) and California 

Service Center (CSC) in three high-skilled nonimmigrant 

visa categories: H-1B (Specialty Occupation Workers), 

L-1A (Intracompany Transferee Managers and Executives) 

and L-1B (Specialized Knowledge Workers). The FY 2015 

RFE rates for these categories continues to show disparities 

between the two service centers, including fluctuations in 

RFE issuance rates and unexplained divergences. The FY 

2015 RFE data in other employment-based nonimmigrant 

visa categories also revealed high rates of issuance in 

two product lines at the VSC: O-1 (Individuals with 

Extraordinary Ability or Achievement), reported at 49 

percent, and P-1 (Internationally Recognized Athletes), 

which increased to 65 percent. The Ombudsman will 

continue to monitor and engage USCIS on issues pertaining 

to the quality and frequency of RFEs. 

Employment Authorization Documents

In 2006, 2008, and 2011, the Ombudsman issued formal 

recommendations suggesting ways to reduce USCIS’ 

processing delays for employment authorization documents 

(EADs). USCIS adopted some of the Ombudsman’s 

recommendations, but disagreed EAD processing was a 

significant issue, given the small percentage of delayed 

cards. However, FY 2015 data showed EAD adjudications 

after 90 days reached a troublesome 22 percent, or 449,307 

filings. With a proposal to eliminate the 90-day processing 

requirement currently under consideration by the agency, 

timeliness remains a real concern for EAD processing. 

The proposed regulatory changes are not likely to result in 

decreased processing times, absent significant commitment 

from the agency to devote resources to improving 

processing times across the product line. The Ombudsman 

continues to highlight EAD processing delays as a systemic 

issue, and will continue to monitor and engage the agency 

as long as EAD delays persist. 

Families and Children

Applying for Naturalization

Despite President Obama’s White House Task Force on 

New Americans’ efforts to strengthen existing pathways 

to naturalization, a number of barriers remain to eligible 

applicants. A sizable number of the 8 million permanent 

residents eligible to apply for citizenship are elderly, poorly 

educated, or indigent, and face greater difficulty meeting 

naturalization qualifications. USCIS recently issued an 

NPRM for a new fee schedule that includes a biometrics 

fee waiver and a partial fee waiver for certain low-income 

applicants. Nevertheless, the naturalization process 

continues to be plagued by prolonged delays; USCIS is 

currently failing to meet its processing time goal at almost 

every field office. To ensure access to U.S. citizenship by 

eligible permanent residents, the Ombudsman will continue 

to monitor the naturalization process and engage with 

USCIS and stakeholders through public engagements and 

requests for case assistance.

Fee Waiver Processing

USCIS recently posted an updated version of its fee waiver 

form more than doubling the length, with an additional 

five pages of attestations, requiring more supporting 

documentation. The updated form will have a negative 

impact, particularly on pro se applicants for whom it may 

serve as a deterrent. Rather than adding to the burden, 

the agency should focus on clarifying and simplifying 

the overall fee waiver application process and train 

adjudicators on its eligibility guidance to achieve quality 

and consistency in fee waiver adjudications. In addition, 

stakeholders reported denial notices provide insufficient 

guidance as to the inadequacies of the requests, preventing 

customers and legal representatives from making 

corrections that would lead to success in future requests. 

The Ombudsman urges USCIS to cite specific deficiencies 

in denial notices to prevent unnecessary refilings.

Parole

Parole authority has been increasingly used in the past few 

years to reunify families, address humanitarian emergencies, 

support circumstances justified by significant public 

benefits, and facilitate international travel for business and 

educational purposes. Despite its increased use, USCIS 

has not yet issued guidance on the meaning of the Board of 

Immigration Appeal’s 2012 precedent decision on advance 

parole for certain individuals to return to the United States 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | xi

after temporarily traveling abroad or guidance clarifying 

the specific types of evidence required for a grant of 

humanitarian parole. Similarly, U.S. Immigration and 

Customs Enforcement (ICE) has not issued guidance for 

military parole in place requests from family members 

of active-duty, reserve, and guard members of the Armed 

Forces of the United States, resulting in inconsistent 

treatment of individuals who fall under ICE jurisdiction. 

The Ombudsman recently issued a formal recommendation 

asking USCIS to exercise its statutory authority to 

implement a parole policy for eligible U petitioners 

located abroad who are waiting to receive a U visa. The 

Ombudsman encourages the use of parole consistent with 

statutory parameters to accomplish these and related goals, 

and will continue to engage with USCIS on these issues.

Military Immigration Issues

The Ombudsman strongly supports USCIS’ efforts to 

meet the needs of members of the U.S. military and their 

family members. While USCIS field offices diligently 

work to mitigate ongoing processing delays in military 

naturalization applications by communicating with USCIS 

military liaison officers, the agency has no control over 

the FBI background checks and can take no action on an 

application until that process is complete. These delays 

undermine the purpose of USCIS’ “Naturalization at Basic 

Training” initiative, and affect military readiness because 

soldiers are unable to deploy with their units abroad or 

obtain necessary security clearances. The Ombudsman 

will continue to monitor processing delays, assist service 

members, and liaise with USCIS and the FBI to identify 

opportunities to address and mitigate delays. 

Petitions to Remove Conditions on Residence

Despite improvements in the processing and adjudication 

of petitions to remove conditions on residence (Form 

I-751), stakeholders continue to express concerns with 

processing delays. The Ombudsman strongly urges USCIS 

to acknowledge longstanding persistent issues in the 

processing of I-751 petitions, as well as implement the 

Ombudsman’s 2013 recommendations to provide timely, 

effective, and accurate notice to petitioners concerning their 

status. The Ombudsman will continue to monitor USCIS 

processing delays of petitions filed by conditional residents 

and engage with USCIS on expanding the publication of 

field office processing times, as well as adjudicating I-751s 

within a year of receipt. 
xii | ANNUAL REPORT TO CONGRESS JUNE 2016

Table of Contents

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

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

Executive Summary...................................................................................................................................................................vi

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

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

Requests for Case Assistance..............................................................................................................................................2

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

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

Key Developments and Areas of Focus .............................................................................................................................11

Humanitarian .......................................................................................................................................................................12

Asylum Backlogs and Continuing Assessment Problems ...............................................................................................13

Central American Minors Refugee/Parole Program .........................................................................................................17

The Haitian Family Reunification Parole Program .........................................................................................................21

The Deferred Action for Childhood Arrivals Program .....................................................................................................22

Provisional Waivers .........................................................................................................................................................24

Recommendation Update: Special Immigrant Juveniles .................................................................................................27

Interagency, Customer Service, and Process Integrity .......................................................................................30

Processing Times and Processing Delays .........................................................................................................................31

The Challenges of Background Checks and Clearances on Case Adjudication ..............................................................35

Ensuring the Delivery of Secure Documents ...................................................................................................................39

Transformation Update: E-Filing for Immigration Benefits Expands ..............................................................................41

Recommendation Update: Consular Returns ...................................................................................................................43
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 1

Business and Employment .............................................................................................................................................46

Regulatory and Policy Developments in Employment-Based Petitions ..........................................................................47

EB-5 Immigrant Investor Program Update ......................................................................................................................51

Continuing Challenges for Lesser-Skilled Worker Benefits:

H-2 Temporary Workers and Labor Trafficking ................................................................................................53

H-2B Temporary Non-Agricultural Workers—

Program Developments and Challenges ............................................................................................................57

Requests for Evidence.......................................................................................................................................................59

Recommendation Update: Employment Authorization Documents ...............................................................................61

Families and Children .......................................................................................................................................................64

Barriers to Applying for Naturalization ............................................................................................................................65

Fee Waiver Processing Update .........................................................................................................................................69

The Changing Landscape of Parole .................................................................................................................................72

Military Immigration Issues..............................................................................................................................................75

Recommendation Update: Petitions to Remove Conditions on Residence......................................................................76

Appendices

Recommendations Updates...............................................................................................................................................79

The Ombudsman by the Numbers....................................................................................................................................82

Homeland Security Act: Section 452—Citizenship and Immigration Services Ombudsman ........................................85

Request for Case Assistance Process................................................................................................................................87
2 | ANNUAL REPORT TO CONGRESS JUNE 2016

Ombudsman’s Office: The Year in Review

Ombudsman’s Office Overview 

The Homeland Security Act (HSA) of 2002 established 

the Office of the Citizenship and Immigration Services 

Ombudsman (Ombudsman).1

 The mission of the 

Ombudsman is to: 

 Assist individuals and employers in resolving 

problems with U.S. Citizenship and Immigration 

Services (USCIS);

 Review USCIS policies and procedures to identify 

areas in which individuals and employers have 

problems in dealing with USCIS; and

 Propose changes in the administrative practices of 

USCIS to mitigate identified problems.2

Critical to achieving this mandate is the Ombudsman’s 

role as an independent, impartial, and confidential resource 

within the U.S. Department of Homeland Security (DHS). 

 Independent. The Ombudsman is an independent DHS 

office, reporting directly to the DHS Deputy Secretary 

and is not a part of USCIS. 

 Impartial. The Ombudsman works in a neutral 

and impartial manner to improve the delivery of 

immigration benefits and services.

 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: 

 Evaluating individual requests for case assistance and 

recommending USCIS engage in corrective actions, 

where appropriate;

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

Ombudsman, the Ombudsman’s staff and the office. 2 HSA § 452, 6 U.S.C. § 272. 

 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 

 Facilitating interagency collaboration, and 

conducting outreach to a wide range of public and 

private stakeholders. 

During the 2016 reporting period (April 1, 2015 to March 

31, 2016), the Ombudsman was staffed with approximately 

30 full-time employees with diverse backgrounds and 

areas of subject matter expertise in immigration law and 

policy. Most of the staff is devoted to requests for case 

assistance submitted by the public. These individuals 

include former USCIS, U.S. Department of State (DOS), 

and U.S. Department of Labor (DOL) staff; attorneys who 

previously worked for non-profit organizations; and private 

sector business and family immigration experts. 

Requests for Case Assistance

In the 2016 reporting period, the Ombudsman received 

9,448 requests for case assistance, an increase of 25 percent 

from the 2015 reporting period. Individuals, employers, 

and their legal representatives who encounter problems 

with USCIS in the processing of their immigration benefits 

requests may contact the Ombudsman after attempting to 

resolve the issue directly with USCIS. 

The Ombudsman works to resolve case issues directly 

with USCIS field offices, service centers, and other 

offices. 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 warranted, the request may be escalated to 

USCIS Headquarters. 

The Ombudsman works to resolve a wide range of issues 

across employment, family, and humanitarian categories, 

addressing the following:
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 3

 Typographic errors in immigration documents;

 Cases 60 days past normal processing times;

 USCIS’ failure to schedule biometrics appointments, 

interviews, naturalization oath ceremonies, or 

other appointments;

 Change of address and mailing issues, including nondelivery of notices of action or completed immigration 

documents (e.g., Employment Authorization 

Documents (EADs), Permanent Resident Cards, etc.);

 Cases where the beneficiary may “age-out” of 

eligibility for the requested immigration benefit;

 Refunds in cases of clear USCIS error;

 Lost files or file transfer problems;

 Clear errors of fact, or gross and obvious 

misapplication of the relevant law by USCIS in 

Requests for Evidence (RFEs), Notices of Intent to 

Deny (NOIDs), and denials;

 Applications and petitions that were improperly 

rejected by USCIS;

 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.);

 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; and

 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.).

Based on a review of requests for case assistance submitted 

to the Ombudsman during the 2016 reporting period, the 

top three difficulties experienced with USCIS are: 

 Applications or petitions pending outside posted 

processing time (55 percent); 

 Adjudication issues, such as incorrect decisions or 

RFEs that are unrelated to the application or petition 

(11 percent); and 

 Administrative issues, including those related to file 

transfer and mailing issues (8 percent). 

The Ombudsman closed 12 percent of requests for case 

assistance prior to USCIS contact because the issue was 

outside of the office’s jurisdiction, not yet ripe for review 

(e.g., within posted processing times), or was resolved by 

USCIS before the Ombudsman could take action.

The Ombudsman’s Jurisdiction. The Ombudsman’s 

jurisdiction is limited by statute to matters involving 

USCIS.3

 The Ombudsman does not have the authority to 

assist with problems individuals or employers experience 

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

Immigration and Customs Enforcement (ICE), DOS, the 

Executive Office for Immigration Review (EOIR), or DOL. 

When a request for case assistance falls outside of the 

Ombudsman’s jurisdiction, it will inform the customer the 

matter is outside the scope of the Ombudsman’s authority 

and reference the appropriate government agency. The 

3 HSA § 452(b)(1), 6 U.S.C. § 272(b)(1). Jurisdiction may extend to issues 

involving both USCIS and another government entity. The Ombudsman does 

not provide legal advice.

Figure 1.1: Top Five Primary Form Types Received in 

Requests for Case Assistance

Form Type Received % of Total 

Receipts

I-485, Application to Register Permanent 

Residence or Adjust Status

Based on an I-130 607

Based on an I-140 511

Based on another classification 655

1,773 19.18%

I-765, Application for 

Employment Authorization 

(exclusive of Deferred Action for 

Childhood Arrivals (DACA))

1,226 13.07%

I-821D, Consideration of Deferred 

Action for Childhood Arrivals 909 9.84%

I-130, Petition for Alien Relative 878 9.50%

N-400, Application for Naturalization 562 6.08%
4 | ANNUAL REPORT TO CONGRESS JUNE 2016

Ombudsman is not an appellate body. Additionally, the 

Ombudsman does not have the authority to demand USCIS 

reopen a case, or to reverse any decisions the agency may 

have made. 

An Office of Last Resort. The Ombudsman recognizes that 

many who request assistance have already waited beyond 

the duration of USCIS processing times. Absent an urgent 

matter, the Ombudsman requires customers to wait 60 days 

past USCIS posted processing times before submitting 

requests for case assistance.4

 Individuals are also asked 

to attempt to solve the problem on their own through 

USCIS’ customer service options before contacting the 

Ombudsman.5

 In 69 percent of requests for case assistance 

submitted to the Ombudsman during the reporting period, 

individuals and employers first contacted the National 

Customer Service Center (NCSC), while 25 percent 

appeared at InfoPass appointments at USCIS local field 

offices. The remainder may have sought assistance through 

another means, such as a Congressional Representative.

4 There are two exceptions to the Ombudsman’s requirement 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 current regulations and accordingly may be submitted at day 

75; and Deferred Action for Childhood Arrivals renewal applications, which 

may be submitted at day 105. See 8 C.F.R. § 274a.13(d). USCIS Webpage, 

“Renew Your DACA;” https://www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-process/renew-your-daca (accessed 

May 26, 2016). 5 USCIS customer service options include: My Case Status, the NCSC, 

InfoPass, and e-Request. See USCIS Webpage, “myUSCIS – Case Status;” 

https://egov.uscis.gov/casestatus/landing.do (accessed Apr. 28, 2016); USCIS 

Webpage, “InfoPass;” https://infopass.uscis.gov/ (accessed Apr. 28, 2016), 

USCIS Webpage, “e-Request;” https://egov.uscis.gov/e-Request/Intro.do

(accessed Apr. 28, 2016). 

Ombudsman Inquiries Resolved Through Direct Contact 

with USCIS Offices. The Ombudsman evaluates each 

request for 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 centers, field offices, or other facilities to 

request remedial actions.

Expediting Inquiries to USCIS. The Ombudsman will 

expedite a request based on an emergency or hardship.6

 In 

deciding whether to expedite, the Ombudsman follows the 

same criteria established by USCIS.7

USCIS Responses. Pursuant to a revised Memorandum 

of Understanding between USCIS and the Ombudsman 

executed in March 2016, USCIS has 15 business days 

to respond to the Ombudsman with the action taken on 

a specific application or petition, and 5 business days to 

respond to expedited inquiries.8

 During the majority of the 

2016 reporting period, the timeframes were 30 business 

days and 3 business days for expedites. 

6 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. 7 USCIS Webpage, “Expedite Criteria” (Aug. 28, 2015); https://www.uscis.

gov/forms/expedite-criteria (accessed Apr. 28, 2016). The criteria are severe 

financial loss to company or person; emergency situation; humanitarian 

reasons; nonprofit organization whose request is in furtherance of the cultural 

and social interests of the United States, Department of Defense, or national 

interest situation; USCIS error; or compelling interest of USCIS. 8 “Memorandum of Understanding Between U.S. Citizenship and Immigration 

Services and the Citizenship and Immigration Services Ombudsman” (Mar. 

30, 2016)(copy on file with the Ombudsman). 

 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 5

The Ombudsman closes requests for assistance after 

USCIS takes action to resolve the issue. Where USCIS 

cannot provide a specific timeframe in which it will resolve 

the issue or the case is at least 6 months past USCIS 

posted processing times, the Ombudsman may place the 

application or petition in a separate docket of long-pending 

cases. The Ombudsman regularly follows up with USCIS 

and monitors these cases until the agency takes action on 

the application or petition.

Ombudsman case assistance, of course, does not always 

result in approval. Based on the Ombudsman’s intervention, 

USCIS sometimes takes action on a long-pending case 

and issues a RFE, a NOID, or a denial. Often cases that 

have fallen outside normal processing times have done so 

for reasons beyond the control of USCIS, such as pending 

background checks being conducted by another agency. 

Some adjudication issues are a matter of discretion, and in 

some such situations the USCIS decision is not changed 

after an Ombudsman inquiry; others are reopened and 

reversed. The Ombudsman’s case assistance is never a 

substitute for legal recourse; for many immigration benefits, 

individuals and employers must file Motions to Reopen/

Reconsider and appeal to preserve their rights.9

The following cases demonstrate the types of assistance 

provided by the Ombudsman in the 2016 reporting period:

Expediting Cases

 Humanitarian Reasons. When an interpreter for 

a publishing house needed to travel to Haiti for a 

humanitarian mission there, he reached out to the 

Ombudsman. He had filed Form I-131, Application 

for Travel Document, with a request to expedite more 

than 2 months before his scheduled trip. Despite 

several telephone calls and a visit to the local USCIS 

office, the applicant still had no response, only a week 

before he was scheduled to travel. With the help of the 

Ombudsman, the document was produced just in time 

for his humanitarian mission. 

 Multi-Agency Issues. The Ombudsman was contacted 

about a U.S. citizen mother and her young child who 

were living in a refugee camp in Turkey after fleeing 

their home in northern Iraq. The mother and her family 

in the United States were trying to obtain approval 

of the Form I-130, Petition for Alien Relative filed 

on behalf of the son to allow the pair to come to the 

9 See generally 8 C.F.R. § 103.3(a) (appeals), 103.5 (motions to reopen/

reconsider).

United States. The Ombudsman served as the liaison 

with USCIS, DOS, and later, once the petition was 

approved, with CBP to ensure the child’s entry to the 

United States.

Reopening Improper Denials

 Deferred Action for Childhood Arrivals (DACA).

The Ombudsman reached out to USCIS regarding a 

denied Form I-821D, Consideration of Deferred Action 

for Childhood Arrivals. USCIS denied the applicant’s 

renewal of DACA based on travel outside of the United 

States without authorization. Although USCIS issued 

the customer an advance parole document, he departed 

the United States one day before the “issue date.” The 

customer departed the United States in good faith 

after receiving the document, not realizing the “issue 

date” represented the initiation of validity for travel. 

Following an inquiry from the Ombudsman, USCIS 

reopened and approved this case (and several others 

like it) since he returned prior to the advance parole 

document’s end date. 

 Provisional Waivers. After being denied a provisional 

waiver, a spouse sought assistance from the 

Ombudsman. Her application had included substantial 

evidence of the severe psychological, emotional, and 

financial hardship her U.S. citizen husband would 

suffer if the two were separated or if he were to 

relocate to El Salvador with her. After a request from 

the Ombudsman that USCIS reconsider the husband’s 

very detailed affidavit and the totality of the family’s 

circumstances, the agency reopened the case and 

exercised its discretion to grant the provisional waiver.

 Legal Interpretations. Representatives for more than 

a dozen victims of labor trafficking reached out to the 

Ombudsman expressing concern about denied Forms 

I-918, Petition for U Nonimmigrant Status. USCIS 

denied the petitions because, while the petitioners had 

established they were victims of involuntary servitude, 

the agency found they had not demonstrated the 

harm they suffered was substantial or prolonged. The 

Ombudsman reached out to USCIS, asking the agency 

to give deference to DOL’s certification in the cases. 

USCIS later informed the Ombudsman it reopened all 

of the cases.
6 | ANNUAL REPORT TO CONGRESS JUNE 2016

Administrative and Procedural Issues 

 Refunds. A customer received an approval notice 

for her Form I-130 along with a request to submit 

Form I-824, Application for Action on an Approved 

Application or Petition, even though consular 

processing had been requested on the I-130. The 

customer returned the completed form and $400 fee to 

USCIS and was later informed she did not have to file 

the Form I-824; however, the agency refused to refund 

the filing fee. Following receipt of the Ombudsman’s 

inquiry, USCIS refunded the fee to the customer.

 Mailing Issues. The customer, an elderly man suffering 

from Alzheimer’s disease, filed three Forms I-90, 

Application to Replace Permanent Resident Card.

The card was never delivered, despite the post office’s 

records indicating two deliveries to the man’s mailing 

address. As the post office did not return the card to 

USCIS, USCIS continued to assert the applicant had to 

re-file with the fee. The applicant was able to document 

a series of items that had gone missing or were 

undelivered at his assisted living facility. This evidence 

was included in the Ombudsman’s inquiry to USCIS. 

The agency reopened the last denied Form I-90 and resent the permanent resident card. 

 Erroneous Denial for Abandonment. USCIS denied 

a Form I-730, Refugee/Asylee Relative Petition on the 

ground the petitioner had not responded to a Notice of 

Reopening and Intent to Deny, thereby abandoning the 

petition. The petitioner’s attorney had timely responded 

to the request on his client’s behalf. The Ombudsman 

contacted USCIS with the tracking number and 

signature confirmation for the petitioner’s response, 

and the petition was reopened on USCIS’ motion. 

Employment-related Matters

Credited to a program increase approved by Congress and 

the President in Fiscal Year (FY) 2015,10 the Ombudsman 

established a team of analysts dedicated to resolving 

employment-related cases during this reporting year. 

Employment-related cases make up nearly 30 percent of 

all requests from the public. The funding increase restored 

prior years’ budget reductions and enables the office to 

better respond to continued increases in requests for case 

assistance. Examples of employment-related cases received 

include:

 USCIS denied a groundskeeping company’s Form 

I-129, Petition for a Nonimmigrant Worker for 30 

workers on the basis that the company regularly 

requested peakload workers year after year and thus 

had no “temporary” need. The Ombudsman asked the 

service center to review the petition, which it did and 

subsequently reopened and approved the petition.

 When a U.S.-based company sought to transfer a 

foreign-born production manager to its U.S. team, it 

filed Form I-129 for an L-1A Intracompany Manager. 

The petition was approved, but when the beneficiary 

presented himself at a port of entry, he was refused 

on the ground that he did not qualify as an L-1A. 

Following an inquiry by the Ombudsman, both USCIS 

and CBP reviewed the petition; the manager was 

admitted to the United States, and the derogatory note 

was removed from his record. 

 A foreign-born worker experienced difficulty getting 

two approved immigrant visa petitions interfiled so he 

could retain his former priority date and be eligible to 

adjust status based on the earlier priority date. He was 

the beneficiary of a recently approved Form I-140, 

Immigrant Petition for Alien Worker in the second 

employment preference category (EB-2). He had also 

previously been the beneficiary of an approved I-140 in 

the third employment preference category (EB-3). The 

Ombudsman worked with USCIS to ensure the EB-3 

priority date was used with the EB-2 approval to timely 

adjudicate the application to adjust status. 

10 Department of Homeland Security Appropriations Act, 2015, Pub. L. No. 114-

4, 129 Stat. 39 (2015).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 7

USCIS’ Role in Resolving Cases

None of the Ombudsman’s work would be possible without 

corresponding effort from USCIS. The agency’s staff is 

a critical component in accomplishing the Ombudsman’s 

mission. The Ombudsman appreciates the dedication of 

USCIS staff, and will continue to work with them for the 

timely and efficient adjudication of immigration benefits. 

The Year in Outreach

In this reporting period, the Ombudsman conducted 

over 121 stakeholder engagements, reaching a multitude 

of diverse stakeholders11—including state and local 

officials, Congressional offices, national and communitybased organizations, attorney bar associations, employer 

associations, and individuals—to understand and address 

concerns about the delivery of immigration services and 

benefits.12 The Ombudsman increased outreach across 

the United States through webinars, teleconferences, and 

stakeholder engagements, which included visits with 

USCIS service centers and field offices. 

Social Media

In November 2015, the Ombudsman created a social media 

presence through Facebook13 to fulfill further its statutory 

mission. The Ombudsman regularly posts updates of 

interest to customers, creating new opportunities to engage 

with stakeholders. 

Teleconferences

The Ombudsman expanded the frequency of teleconferences 

informing stakeholders of immigration issues and policy 

trends. The Ombudsman hosted nine teleconferences 

during the reporting year to provide information and 

receive stakeholder feedback on immigration issues and 

11 The Ombudsman has established a performance measure to conduct 100 

outreach activities each fiscal year. See DHS Quarterly Performance Report 

Management Measures FY 2015 End of Year (Dec. 16, 2015), p. 58. 12 Northeast: New York, NY; and Newark, NJ. Midwest: Cincinnati, Ohio; 

Valparaiso, South Bend, and Indianapolis, IN; Detroit, MI; and Omaha, NE. 

Mid-Atlantic: Richmond and Charlottesville, VA; Baltimore, Catonsville, 

Silver Spring, and National Harbor, MD; and Washington, DC. Southeast: 

Macon, GA; Memphis, TN; Birmingham, AL; Greensboro and Raleigh, 

NC; and Miami and Tampa, FL. Southwest: Irving, Harlingen, San Antonio, 

Austin, Houston, and Dallas, TX. West: Las Vegas, NV; San Diego, San 

Jose, and San Francisco, CA; Salt Lake City and West Valley City, UT; and 

Westminster, Boulder, and Denver, CO. 13 The Ombudsman’s Facebook page can be found at https://www.facebook.

com/cisombudsman/.

policy trends. The Ombudsman hosted the following 

teleconferences in the 2016 reporting period:14

 Impact of USCIS Delays on U.S. Department of Motor 

Vehicles (DMV) Benefits (February 25, 2016)

 Transformation of USCIS Systems (January 28, 2016)

 Special Immigrant Juvenile Status (December 15, 2015) 

 Fifth Annual Ombudsman Conference Recap 

(November 19, 2015)

 Consular Returns: A Conversation with the Department 

of State and USCIS (October 28, 2015)

 USCIS Forms: Impact and Process of Form Changes 

(September 29, 2015) 

 Recap of the Annual Report to Congress (July 16, 2015) 

 U Visas: A Conversation with the Department of State 

and USCIS (May 27, 2015)

 H-1B Changes in Worksite Locations (April 30, 2015)

The Ombudsman’s Annual Conference

On November 5, 2015, the Ombudsman held its “Fifth 

Annual Conference: Government and Stakeholders 

Working Together to Improve Immigration Services.”15

The conference included over 300 in-person participants; 

thousands more viewed the conference via livestream.16

DHS Secretary Jeh Johnson delivered keynote remarks, 

focusing on diversity and immigration as key American 

values. Secretary Johnson was followed by USCIS Director 

León Rodríguez, who engaged with stakeholders during 

an extensive question and answer session. He announced 

USCIS had adopted the Ombudsman’s recommendation 

to centralize adjudications of special immigration juvenile 

petitions into one USCIS service center. The morning 

plenary offered a rare opportunity to hear directly from 

government decisionmakers regarding planning and 

implementation of President Obama’s 2014 directive to 

take common sense steps to fix our broken immigration 

system through executive actions. The afternoon panels 

14 Recaps of the Ombudsman’s teleconference series can be found at https://

www.dhs.gov/ombudsmans-public-teleconference-series. 15 See DHS Blog, “Ombudsman’s Fifth Annual Conference: Government and 

Stakeholders Working Together to Improve Immigration Services” (Nov. 24, 

2015); https://www.dhs.gov/blog/2015/11/24/ombudsman%E2%80%99s-fifthannual-conference-government-and-stakeholders-working-together (accessed 

May 24, 2016). 16 As of May 2016, the recording of the livestream had over 6,000 views. 
8 | ANNUAL REPORT TO CONGRESS JUNE 2016

focused on a variety of immigration issues, including 

employment and humanitarian hot topics, DACA, parole, 

and provisional waivers.

The Ombudsman’s Language Access Plan

The Ombudsman has developed a Language Access Plan 

to provide greater access to Ombudsman services for 

individuals with limited English proficiency by providing 

language assistance services. The Ombudsman translated 

the full 2015 Annual Report to Spanish and the executive 

summary to Spanish, Arabic, and Mandarin. In accordance 

with the Language Access Plan, the Ombudsman participated 

in its first Spanish engagement via radio. The Ombudsman 

will continue to review best practices to incorporate 

languages for individuals with limited English proficiency.17

The Ombudsman’s Annual Report

The Ombudsman submits an Annual Report to Congress by 

June 30 each year in accordance with HSA 452(c). As this 

report is being finalized, the Ombudsman has not received 

USCIS’ response to the 2015 Annual Report.

DHS Blue Campaign: Protections for Immigrant 

Victims of Trafficking

As Chair of the Blue Campaign, the Department’s unified 

voice for combatting human trafficking, Ombudsman 

Odom is at the forefront of these efforts. In tandem with 

USCIS and a host of other federal, state, and local entities, 

the Blue Campaign has elevated awareness of successful 

anti-trafficking strategies while enhancing humanitarian 

relief programs for many thousands of trafficking and 

abuse victims each year.

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 the Violence Against Women Act 

(VAWA) and Victims of Trafficking and Violence 

17 DHS, “Language Access Plan” (Feb. 28, 2012); http://www.dhs.gov/xlibrary/

assets/crcl/crcl-dhs-language-access-plan.pdf (accessed Apr. 27, 2016).

Protection Act (VTVPA).18 Under VAWA and VTVPA, 

USCIS extends three key forms of relief: (1) a process 

through which domestic violence victims can obtain 

independence from abusive partners by self-petitioning for 

legal permanent residence; (2) T visas granted for victims 

of human trafficking who aid law enforcement officials 

in the investigation or prosecution of those crimes; and 

(3) U visas granted to victims of certain criminal conduct, 

including human trafficking, who aid law enforcement 

officials in the investigation or prosecution of that 

conduct.19 ICE exercises its authority to permit continued 

presence in the United States for victims of severe forms 

of trafficking in persons.20 Through these programs, DHS 

brings immigration relief to more than 11,000 victims of 

trafficking and other criminal conduct annually.

With support from its Federal Law Enforcement Training 

Center (FLETC), DHS is a national leader in antihuman 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 Blue 

Campaign have trained well over 200,000 individuals 

on indicators of human trafficking.21 This year, under the 

Justice for Victims of Trafficking Act, FLETC is providing 

Human Trafficking Awareness training as part of the 

requisite core curriculum for 91 law enforcement agencies. 

Blue Campaign offers a variety of free, public resources 

through its website to help raise awareness about combating 

human trafficking.22 Blue Campaign posters displayed at 

truck stops and major airports across the country showcase 

18 VAWA, Pub. L. No. 103-322, 108 Stat. 1796, Title IV (1994) (codified as 

amended in scattered sections of 8 and 42 U.S.C.); VTVPA, Pub. L. 106-386, 

114 Stat. 1464 (2000)(codified in scattered sections of 22 U.S.C.). See also

Violence Against Women and Department of Justice Reauthorization Act of 

2005, Pub. L. No. 109-16, 119 Stat. 2961 (2006); Violence Against Women 

Reauthorization Act of 2013 (VAWA 2013), Pub. L. No. 113-4, 127 Stat. 

54 (2013). 19 Id. 20 28 C.F.R. § 1100.35. 21 In conjunction with FLETC, the Blue Campaign provided live, in-person 

training to several state and local jurisdictions, including trainings in Minot, 

Dickinson, Williston, Fargo, and Bismarck, ND; Lincoln, Nebraska; Chicago, 

IL; Newark, NJ; and San Diego, CA. In addition, the Blue Campaign 

produced three human trafficking-awareness training videos for tribal 

law enforcement officers, judges, advocates, and probation officers about 

indicators of human trafficking and identifying controlling behaviors of 

traffickers, and a new 45-minute web-based training course for state and local 

law enforcement accessible through the FLETC website. 22 DHS Blue Campaign, http://www.dhs.gov/bluecampaign (accessed May 19, 

2016). 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 9

examples of the three forms of human trafficking: forced 

labor, domestic servitude, and commercial sex trafficking.23

One of Blue Campaign’s key successes 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, Blue Campaign has entered into formal partnerships 

with South Carolina Office of the Attorney General, North 

Dakota Public Health Association, Mississippi Office 

of Homeland Security, and TravelCenters of America, a 

company operating 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.

DHS Council on Combating Violence Against Women. 

The Council on Combating Violence Against Women 

(Council) arose out of DHS’s ongoing commitment to 

23 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.

preventing and addressing gender-based violence.24 In 

January 2016, the Council co-hosted a Human Trafficking 

101 teleconference with the Blue Campaign in recognition 

of Human Trafficking Awareness month, sharing 

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. 

With support from the Ombudsman, the Council updated 

the U and T Visa Law Enforcement Resource Guide in 

December 2015,25 providing federal, state, local, tribal, 

and territorial law enforcement officials information 

on how to support the investigations and prosecution 

of crimes involving qualified immigrant victims.26 The 

updated guide includes information about U and T visa 

requirements and on the I-918B certification and I-914B 

declaration processes, best practices, answers to important 

and frequently asked questions from judges, prosecutors, 

law enforcement agencies, and other officials, and contact 

information for DHS personnel responsible for U and T 

visa issues.27

24 In 2010, DHS established a working group dedicated to championing the 

mission of the White House Council on Women and Girls. In March 2013, 

DHS formally launched the Council on Combating Violence Against Women. 25 Maria Odom and Heather Fong, “DHS Releases Updated Law Enforcement 

Resource Guide on U and T Visas,” DHS Blog (Dec. 21, 2015); https://www.

dhs.gov/blog/2015/12/21/dhs-releases-updated-law-enforcement-resourceguide-u-and-t-visas (accessed May 16, 2016). 26 DHS Webpage, “U and T Visa Law Enforcement Resource Guide” (Nov. 25, 

2015); https://www.dhs.gov/publication/u-visa-law-enforcement-certificationresource-guide (accessed May 16, 2016). 27 Louis F. Quijas and January Contreras, “Department of Homeland Security 

Releases U Visa Law Enforcement Certification Resource Guide” White 

House Blog (Jan. 3, 2012); https://www.whitehouse.gov/blog/2012/01/03/

department-homeland-security-releases-u-visa-law-enforcement-certificationresource- (accessed May 16, 2016).
10 | ANNUAL REPORT TO CONGRESS JUNE 2016
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 11

Key Developments 

and Areas of Focus

Under Section 452(c)(1)(B) of the HSA 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:

(1) Humanitarian 

(2) Interagency, Customer Service, and Process Integrity 

(3) Employment

(4) Families and Children
12 | ANNUAL REPORT TO CONGRESS JUNE 2016

Humanitarian

U.S. immigration law provides humanitarian relief for 

immigrant victims of crime, persecution, and abuse. Despite 

efforts by USCIS to address the increasing number of asylum 

requests, applicants are experiencing longer delays. Special 

Immigrant Juvenile relief and in-country refugee/parole 

processing in El Salvador, Guatemala, and Honduras, are critical 

for vulnerable youth populations. The Ombudsman has engaged 

with stakeholders to explore measures that enhance Haitians’ 

ability to reunite with their families. The Ombudsman continues 

to be concerned with ongoing processing issues with DACA 

applications and inconsistent processing of provisional waivers. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 13

Asylum Backlogs and 

Continuing Assessment 

Problems

Responsible USCIS Offices: Refugee, Asylum, and 

International Operations Directorates

The volume of affirmative asylum cases pending at USCIS 

has reached well over 100,000 and continues to grow,28

creating progressively longer processing delays for asylum 

applicants around the country. Sustained surges in highpriority credible and reasonable fear claims and a boom 

in new affirmative asylum filings are primary drivers of 

this backlog.29 Despite significant efforts by the Refugee, 

Asylum and International Operations (RAIO) Directorate’s 

Asylum Division to respond to this pending caseload, such 

28 See USCIS Webpage, “Asylum Office Workload, December 2015” (Jan. 

13, 2016); https://www.uscis.gov/sites/default/files/USCIS/Outreach/

Upcoming%20National%20Engagements/PED_2015-12_NGO_info.pdf

(accessed Feb. 29, 2016). 29 See Ombudsman’s Annual Report 2015, p. 59. 

as doubling the Asylum Officer corps since 2013,30 the 

backlog continues to grow. 

Background 

USCIS’ inventory of pending affirmative asylum cases 

has ballooned over the last 5 years. At the conclusion of 

FY 2011, the affirmative asylum inventory numbered 

9,274 applications.31 By December 31, 2015, that total had 

soared to 128,308 cases—a nearly 1400 percent increase 

in backlogged cases.32 Many factors have contributed 

to the worsening backlog, including: (1) persistent high 

volumes of requests for credible and reasonable fear 

30 See USCIS Asylum Division Quarterly Stakeholder Meeting Notes, p. 1 (Feb. 

5, 2016) (the Asylum Division stated that over 400 Asylum Officers were 

then on staff); information provided by USCIS (Jan. 20, 2015) (the Asylum 

Division stated that in 2013 it had 203 Asylum Officers on staff). 31 See USCIS Webpage, “Asylum Office Workload, July 2011” (Feb. 

3, 2012); https://www.uscis.gov/sites/default/files/USCIS/Outreach/

Notes%20from%20Previous%20Engagements/2011/November%202011/

AffirmativeAsylumWorkload1.pdf (accessed May 5, 2016). 32 See Asylum Office Workload, December 2015, supra note 28.
14 | ANNUAL REPORT TO CONGRESS JUNE 2016

determinations,33 (2) a substantial rise in new affirmative 

asylum applications;34 (3) a spike in asylum applications 

filed with USCIS by Unaccompanied Alien Children 

(UACs) in removal proceedings;35 (4) the temporary 

assignment of significant numbers of Asylum Officers 

to the Refugee Affairs Division (RAD);36 and (5) high 

turnover among Asylum Officers.37

Credible and Reasonable Fear Claims. A large volume 

of credible and reasonable fear cases continues to limit the 

Asylum Division’s capacity to direct its resources to the 

adjudication of pending affirmative asylum applications.38

While requests for credible fear determinations peaked in 

FY 2014 at just under 50,000,39 that total decreased only 

slightly to just over 48,000 in FY 2015.40 Moreover, the 

number of new credible fear cases received by USCIS 

achieved successive record highs in the months of 

September, October, and December 2015, at 6,643; 6,727; 

and 8,641, respectively.41

New Affirmative Asylum Claims. Even as the Asylum 

Division works to adjudicate affirmative asylum cases, the 

volume of newly-filed affirmative asylum cases is climbing 

each year. USCIS received 83,197 new affirmative asylum 

cases in FY 2015, representing more than a 130 percent 

increase over new filings in FY 2011.42

33 See, e.g., Ombudsman Annual Conference 2015, “Humanitarian Hot Topics 

Panel,” p. 2 (Nov. 5, 2015), USCIS Webpage, “Credible Fear Workload 

Report Summary” (FY 2015) (PDF no longer available but is on file with the 

Ombudsman). 34 See, e.g., “Asylum Office Workload, December 2015,” supra note 28. 35 See USCIS Webpage, “MPA and PRL Report 10/01/14-9/30/15” (Oct. 1, 

2015); https://www.uscis.gov/sites/default/files/USCIS/Outreach/PEDMinors_FY15.pdf (accessed Feb. 29, 2016). See also Ombudsman Annual 

Report 2015, p. 59. 36 See Asylum Division Quarterly Stakeholder Meeting Notes, supra note 30, 

at 2. 37 See information provided by USCIS (Nov. 2, 2015). 38 See Ombudsman’s Annual Report 2015, pp. 59-60. 39 USCIS Webpage, “Credible Fear and Reasonable Fear - FY 2014” (Oct. 

28, 2014); http://www.uscis.gov/sites/default/files/USCIS/Outreach/

Upcoming%20National%20Engagements/PED_Credible_Fear_and_

Reasonable_Fear_FY14_Q4.pdf (accessed Feb. 29, 2016). 40 Credible Fear Workload Report Summary, supra note 33. 41 See Ombudsman Annual Conference 2015, “Humanitarian Hot Topics 

Panel” (Nov. 5, 2015); Credible Fear Workload Report Summary, supra note 

33. USCIS Webpage, “Credible Fear Workload Report Summary, FY 2016 

Total Caseload;” https://www.uscis.gov/sites/default/files/USCIS/Outreach/

Upcoming%20National%20Engagements/PED_FY16_CF_and_RF_stats_

thru_2015-12-31.pdf (accessed Feb. 29, 2016). 42 See, e.g., USCIS Webpage, “Asylum Office Workload, September 2015” (Jan. 

13, 2016); https://www.uscis.gov/sites/default/files/USCIS/Outreach/PEDAffirmative_Asylum_Stats_2015-09.pdf (accessed May 6, 2016); see also

information provided by USCIS (Apr. 28, 2014). 

New UAC Claims. As noted in the 2015 Annual Report, 

applications filed by UACs under the William Wilberforce 

Trafficking Victims Protection Reauthorization Act of 2008 

(TVPRA), which take precedence in interview scheduling 

over most adult applications, also contributed to the 

affirmative asylum backlog.43 In FY 2013, 718 cases were 

filed with USCIS under the TVPRA.44 In FY 2015, that 

number swelled to 14,218, an almost 2,000 percent increase.45

Asylum Officers Temporarily Assigned to Refugee Affairs 

Division. The elevation of the number of refugees eligible 

for admission into the United States also has impacted the 

affirmative asylum backlog. The U.S. Government raised 

the cap for refugee admissions into the United States from 

70,000 in FY 2015 to 85,000 in FY 2016.46 To help meet 

this enhanced refugee caseload, the Asylum Division has 

indicated that over the course of FY 2016 it would place an 

estimated 200 Asylum Officers on temporary assignment 

to RAD, with an approximately 2-month commitment for 

each assignment.47 This initiative further diminishes the 

resources available to the Asylum Division for targeting the 

affirmative asylum backlog. 

Asylum Officer Turnover. A high rate of Asylum Officer 

turnover continues to undermine USCIS’ capacity to 

process backlogged asylum cases. The Asylum Division 

reported that attrition in FY 2015 was 43 percent.48 Such 

departures undercut the Asylum Division’s efforts to boost 

the number of Asylum Officers available to adjudicate 

backlogged applications. 

Impacts of Backlog

Pre-Interview Wait Times. As the backlog grows, so 

does the length of time affirmative asylum applicants 

43 See Ombudsman’s Annual Report 2015, p. 60; USCIS Webpage, “Affirmative 

Asylum Scheduling Bulletin” (Apr. 25, 2016); https://www.uscis.gov/

humanitarian/refugees-asylum/asylum/affirmative-asylum-scheduling-bulletin

(accessed May 5, 2016). 44 USCIS Webpage, “MPA and PRL Report 10/01/12-9/30/13” (Oct. 8, 2013); 

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20

Previous%20Engagements/2013/Asylum-MinorsFY13.pdf (accessed Feb. 29, 

2016). 45 MPA and PRL Report 10/01/14-9/30/15, supra note 35. 46 DOS Webpage, “Proposed Refugee Admissions for Fiscal Year 2016” (Oct. 

1, 2015); http://www.state.gov/j/prm/releases/docsforcongress/247770.htm

(accessed Feb. 29, 2016). 47 See Asylum Division Quarterly Stakeholder Meeting Notes, supra note 30, 

at 2. 48 Information provided by USCIS (Nov. 2, 2015). The Asylum Division 

indicates that some of this turnover is a result of the internal promotion of 

Asylum Officers. See Asylum Division Quarterly Stakeholder Meeting Notes, 

supra note 30. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 15

must wait before being scheduled for asylum interviews. 

As discussed in the 2015 Annual Report, asylum offices 

currently schedule affirmative asylum interviews according 

to the following priorities: (1) rescheduled interviews; 

(2) affirmative asylum cases filed by children; and (3) all 

other pending affirmative asylum cases in the order they 

were received (“third priority” cases).49 The Affirmative 

Asylum Scheduling Bulletin (Scheduling Bulletin), first 

published by the Asylum Division in August 2015 and 

updated monthly, shows the approximate filing dates of 

third priority applications currently being scheduled for 

interviews at each asylum office.

Stakeholders have expressed appreciation for the 

transparency afforded by the Scheduling Bulletin.50

Nonetheless, as illustrated in Figure 2.1, the Bulletin 

underscores both the magnitude of the wait times as well 

as their persistent growth in nearly all asylum offices. 

For example, wait times for third priority applicants 

scheduled for interviews in January 2016 ranged from 

approximately 19 months at the New York Asylum Office 

to approximately 53 months at the Los Angeles Asylum 

49 See USCIS Webpage, “Affirmative Asylum Scheduling Bulletin” 

(Apr. 25, 2016); https://www.uscis.gov/humanitarian/refugees-asylum/

asylum/affirmative-asylum-scheduling-bulletin (accessed May 5, 2016); 

Ombudsman’s Annual Report 2015, pp. 59-60. 50 See, e.g., Ombudsman Annual Conference 2015, “Humanitarian Hot Topics 

Panel” (Nov. 5, 2015).

Office.51 Meanwhile, wait times for third priority applicants 

scheduled for interviews at the Houston Asylum Office in 

January 2016 were 5 to 6 months longer than for applicants 

scheduled for interviews at the same office in July 2015. 

The New York Asylum Office was the sole asylum office 

in which wait times fell during this timeframe. Data shows 

that for most third priority asylum applicants, interview 

delays are growing progressively longer.

Although the Scheduling Bulletin has helped alleviate some 

of the uncertainty experienced by asylum seekers, they 

continue to articulate disappointment and concern over the 

long wait times. One asylum applicant from Egypt who filed 

an affirmative application in 2014 submitted a request for 

case assistance to the Ombudsman in 2015 noting that he 

tried several times to get an interview date, but to no avail: 

“I’m ex[t]remely stressed and terrified for the saf[e]ty of 

my wife and children back in my native country...they now 

51 The differences in these wait times among asylum offices reflect in significant 

part the impact of the developments noted in the “Background” section 

above, such as increases in TVPRA applications and requests for credible 

and reasonable fear determinations. For example, the Los Angeles Asylum 

Office adjudicates a high volume of credible and reasonable fear cases as 

well as many children’s applications, which limit that office’s resources for 

adjudicating third priority affirmative asylum cases. See Asylum Division 

Quarterly Stakeholder Meeting Notes, supra note 30, at 2. Credible Fear 

Workload Report Summary (FY 2016), supra note 41. The New York Asylum 

Office, on the other hand, has no detention facilities in its jurisdiction and 

performs only a small quantity of credible fear determinations each year, 

meaning that it can devote a significantly higher proportion of its resources 

to adjudicating third priority asylum cases. See Asylum Division Quarterly 

Stakeholder Meeting Notes, supra note 30 at 2; Credible Fear Workload 

Report Summary, FY 16, supra.

Figure 2.1: Asylum Interview Wait Times

 Asylum Office

Approximate wait time from 

filing date to interview for third 

priority affirmative asylum 

applicants scheduled 

for interviews in July 2015

Approximate wait time from 

filing date to interview for third 

priority affirmative 

asylum applicants scheduled 

for interviews in January 2016

Increase or decrease in 

approximate wait time from filing 

date to interview for third priority 

affirmative asylum applicants 

scheduled for interviews in July 

2015 compared to January 2016

Arlington 23 Months 28 Months + 5 Months

Chicago 26 Months 32 Months + 6 Months

Houston 15 Months 20–21 Months + 5–6 Months

Los Angeles 47 Months 53 Months + 6 Months

Miami 29 Months 32 Months + 3 Months

Newark 27 Months 31 Months + 4 Months

New York 23–24 Months 19 Months – 4–5 Months

San Francisco 24 Months 24 Months No change

Sources: AILA Webpage, “Affirmative Asylum Scheduling Bulletin” (Aug. 7, 2015); http://www.aila.org/infonet/processing-time-reports/affirmative-asylum-scheduling-bulletins/2015/

uscis-affirmative-asylum-scheduling-bulletin (accessed Feb. 29, 2016); USCIS Webpage, “Affirmative Asylum Scheduling Bulletin” (Feb. 5, 2016); https://www.uscis.gov/humanitarian/

refugees-asylum/asylum/affirmative-asylum-scheduling-bulletin (accessed Feb. 29, 2016).
16 | ANNUAL REPORT TO CONGRESS JUNE 2016

remain in dire straits because of the mounting instability of 

the country....”

Post-Interview Wait Times. Many stakeholders also 

have voiced frustration and confusion over processing 

delays following their asylum interviews. Such delays 

can stem from pending security checks, Asylum Division 

Headquarters review, or other circumstances.

The average length of time between “recommended 

approvals” (issued when USCIS finds after the interview 

an affirmative asylum case is approvable but for a pending 

FBI name check52) and “final approvals” of affirmative 

asylum cases has increased in recent years, growing from 

an average of 83 days for such cases completed in FY 

2014 to 105 days for such cases completed in FY 2016 as 

of March 31.53 Likewise, the average length of Asylum 

Division Headquarters review—required for certain types 

of affirmative asylum cases prior to the issuance of a 

final decision in those cases—has risen.54 When Asylum 

Division Headquarters review was conducted in FY 2014, 

the average duration of that review was 182 days; this 

average dropped to 146 days in FY 2015, then rose to 239 

days in the first two quarters of FY 2016.55

Downstream Impact: Employment Authorization Based 

on Pending Asylum Cases. Stakeholders also have voiced 

concern regarding the cost and delay associated with 

obtaining work authorization while asylum cases are 

pending.56 Although there is no fee to file an initial Form 

I-765, Application for Employment Authorization based on 

a pending asylum case, each application to renew requires a 

fee or an accompanying request for a fee waiver.57 Because 

USCIS issues EADs under this category with validity 

periods of only 1 year, asylum seekers often must renew 

their EADs multiple times (in some cases up to 4 years in a 

row). The current $380 EAD filing fee58 places a significant 

financial burden on a vulnerable population.

52 See USCIS Asylum Division, “Affirmative Asylum Procedures Manual 

(AAPM)” (November 2013), p. 23; https://www.uscis.gov/sites/default/files/

files/nativedocuments/Asylum_Procedures_Manual_2013.pdf (accessed May 

5, 2016). 53 Information provided by USCIS (Apr. 20, 2016). 54 See AAPM, supra note 52. Information provided by USCIS (Apr. 20, 2016). 55 Information provided by USCIS (Apr. 20, 2016). 56 Asylum applicants may apply for employment authorization when their 

applications have been pending for 150 days. 8 C.F.R. §§ 208.7, 274a.12(c)

(8). 57 See Instructions for Form I-765, Application for Employment Authorization; 

https://www.uscis.gov/i-765 (accessed May 5, 2016). 58 Id.

Regulations prescribe a processing period of 30 days 

for EAD applications based on pending asylum cases.59

However, stakeholders report USCIS regularly fails to meet 

the 30 days, often exceeding the 90-day period currently 

provided for other EAD adjudications.60 USCIS confirmed 

that as of October 31, 2015, the Vermont Service Center 

(VSC) was taking at least 110 days to process I-765s based 

on pending asylum applications.61

EAD application delays imperil asylum applicants’ 

employment status and prospects. One asylum applicant 

noted, “now I’m about to face a direct impact by loosing 

(sic) my full-time job...due to expired EAD. This job is the 

only income source for family (3 small kids...) and we may 

experience significant hardship while waiting for 

EAD renewal.”62

USCIS Response

The Asylum Division continues to take significant measures 

in response to the growing backlog, including: 1) hiring 

new asylum officers; 2) establishing new asylum suboffices; 3) publishing the Affirmative Asylum Scheduling 

Bulletin; and 4) developing new EAD procedures. 

 New Hires. The Asylum Division continues to expand its 

officer corps to better meet the challenges of the swelling 

backlog. The number of Asylum Officers on staff rose 

from 203 in 2013 to 350 in January 2015, exceeding 400 

as of February 2016.63 Moreover, USCIS authorized the 

59 8 C.F.R. § 208.7(a)(2011). 60 8 C.F.R. § 274a.13(d); information provided through request[s] for case 

assistance. 61 AILA Webpage, “USCIS Processing Time Information for the Vermont 

Service Center” (Dec. 15, 2015); http://www.aila.org/infonet/processing-timereports/vsc/2015/vsc-processing-time-report-12-15-15 (accessed Feb. 29, 

2016). 62 Information provided through request for case assistance. 63 Information provided by USCIS (Jan. 20, 2015); Asylum Division Quarterly 

Stakeholder Meeting Notes, supra note 30.

An individual requesting case assistance regarding a 

post-asylum interview delay wrote:

As you know, the conditions in Syria [are] terrible and 

my wife and children are in imminent danger with bombs 

falling on top of them on daily basis....I can’t bring 

them near me until I get my case result. I am sure you 

understand my anguish as a husband and a father of 

small children who are alone in a place that became a 

battle zone.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 17

Asylum Division to increase the number of Asylum Officer 

positions to 533 in FY 2016, 85 more than were authorized 

in FY 2015.64

Asylum offices make hiring selections above approved 

staffing levels to mitigate the effects of turnover.65 The 

Asylum Division has also implemented initiatives to 

improve retention, such as the introduction of Senior 

Asylum Officer positions.66 In addition, the Asylum Division 

has dramatically scaled up the frequency of the RAIO 

Directorates’ Combined Training and Asylum Division 

Officer Training Course, conducting trainings of 95 new 

Asylum Officers from January through March 2016 alone.67

New Asylum Sub-Offices. In recent years, the Asylum 

Division has created three sub-offices to assist with its 

rising caseloads: the Boston sub-office of the Newark 

Asylum Office; the New Orleans sub-office of the 

Houston Asylum Office; and, most recently, the Crystal 

City, Virginia, sub-office of the Arlington Asylum Office. 

The Crystal City sub-office exclusively conducts remote 

credible and reasonable fear adjudications, and will 

eventually staff up to 60 Asylum Officers, performing these 

adjudications for a variety of jurisdictions.68 The Asylum 

Division indicated, for example, that the Crystal City suboffice will assist the Los Angeles Asylum Office with its 

credible and reasonable fear caseload.69

Change in EAD Policy. USCIS has taken steps to alleviate 

hardships experienced by asylum applicants in connection 

with EADs based on pending asylum cases. A planned change 

to procedures involving the Asylum EAD Clock would 

allow asylum applicants who relocate, resulting in a change 

of jurisdiction, to notice USCIS without causing their asylum 

EAD clocks to stop.70 In addition, USCIS has proposed a rule 

change that would automatically extend the validity period 

64 See Ombudsman Annual Conference 2015, “Humanitarian Hot Topics Panel” 

(Nov. 5, 2015); See 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) Webpage no longer available but copy is on file with 

the Ombudsman. 65 Asylum Division Quarterly Stakeholder Meeting Notes, supra note 30. 66 Information provided by USCIS (Nov. 2, 2015). 67 Asylum Division Quarterly Stakeholder Meeting Notes, supra note 30. 68 Asylum Division Quarterly Stakeholder Meeting Notes, p. 1 (Dec. 11, 2015). 69 Asylum Division Quarterly Stakeholder Meeting Notes, supra note 30. 70 See, e.g., Ombudsman’s Annual Report 2012; Ombudsman Recommendation 

45, “Employment Authorization for Asylum Applicants: Recommendations to 

Improve Coordination and Communication” (Aug. 26, 2011), p. 1 (description 

of the asylum clock); Asylum Division Quarterly Stakeholder Meeting Notes, 

supra note 68.

of an EAD based on a pending asylum application when the 

applicant timely applies to renew the EAD.71

Ombudsman Assistance

The Ombudsman contacted USCIS asylum offices 

regarding both pre- and post-interview processing delays 

in connection with requests for assistance submitted by 

stakeholders. The Ombudsman also met with asylum office 

officials and asylum stakeholders to learn more about the 

impacts of the backlog.

The Ombudsman recognizes the steps taken by the Asylum 

Division to respond to the growing backlog. To further 

enhance transparency surrounding the backlog, optimize 

adjudicative resources, and mitigate the impacts of widening 

processing delays, the Ombudsman is reviewing potential 

recommendations to the Asylum Division and International 

Operations Directorate. 

Central American Minors 

Refugee/Parole Program 

Responsible USCIS Office: Refugee, Asylum, and 

International Operations Directorate

Tens of thousands of unaccompanied Central American 

children arrive at the U.S. southern border each year.72

Facing enormous risks, many children endured serious 

harm during their journey north, seeking to reunite with a 

parent or relative in the United States.73 USCIS and DOS 

established the Central American Minors (CAM) Refugee/

Parole Program in 2014 to help children avoid this dangerous 

trip north by affording them an in-country process for safe 

71 “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 

Improvements Affecting High-Skilled Nonimmigrant Workers; Proposed 

Rule,” 80 Fed. Reg. 81899, 81928-81929 (Dec. 31, 2015). 72 U.S. Customs and Border Protection Webpage, “United States Border 

Patrol Southwest Family Unit Subject and Unaccompanied Alien Children 

Apprehensions Fiscal Year 2016;” http://www.cbp.gov/newsroom/stats/

southwest-border-unaccompanied-children/fy-2016 (accessed Mar. 1, 2016). 73 “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. 1, 2016).
18 | ANNUAL REPORT TO CONGRESS JUNE 2016

relocation to the United States as refugees or parolees.74 The 

Ombudsman addressed this important program in the 2015 

Annual Report,75 and conducted an in country assessment 

of CAM in May 2016 with the goal of evaluating the 

program’s implementation and effectiveness to date.

Background 

In FY 2014, CBP processed 51,705 UACs—a designation 

for certain minors without parental support and lawful 

immigration status76—from El Salvador, Guatemala, and 

Honduras.77 This represented a 1,464 percent increase over 

the 3,304 such childen processed in FY 2009.78 Although 

UAC apprehension rates fell in FY 2015, they rebounded 

sharply in the first half of FY 2016.79

A complex host of factors, including high levels of 

violence and poverty in El Salvador, Guatemala, and 

Honduras (the so-called Northern Triangle) causes children 

to flee to the United States.80 During their dangerous 

journey, children continue to be vulnerable to harm and 

are subject to abuse and exploitation by criminal networks 

and other factors.81 USCIS and DOS created CAM to 

provide some of these children with a safe alternative 

route to the United States.82 The CAM program authorizes 

certain foreign national parents (Qualifying Parents) who 

reside in the United States to file Form DS-7699, Affidavit 

of Relationship (AOR) for Minors Who Are Nationals of 

El Salvador, Guatemala, and Honduras (CAM-AOR) 

on behalf of their children who live in El Salvador, 

Guatemala, or Honduras.83 These children (Qualifying 

74 USCIS Webpage, “In-Country Refugee/Parole Processing for Minors in 

Honduras, El Salvador and Guatemala (Central American Minors – CAM)” 

(June 1, 2015); http://www.uscis.gov/humanitarian/refugees-asylum/

refugees/country-refugeeparole-processing-minors-honduras-el-salvadorand-guatemala-central-american-minors-cam (accessed Mar. 1, 2016); DOS 

Webpage, “In-Country Refugee/Parole Program for Minors in El Salvador, 

Guatemala, and Honduras With Parents Lawfully Present in the United States” 

(Nov. 14, 2014); http://www.state.gov/j/prm/releases/factsheets/2014/234067.

htm (accessed May 16, 2016). 75 See generally Ombudsman’s Annual Report 2015, pp. 72-77. 76 HSA § 462. 77 U.S. Customs and Border Protection Webpage, “Unaccompanied Alien 

Children Encountered by Fiscal Year,” http://www.cbp.gov/newsroom/stats/

southwest-border-unaccompanied-children (accessed May 16, 2016). 78 United States Border Patrol Southwest Family Unit Subject and 

Unaccompanied Alien Children Apprehensions Fiscal Year 2016, supra

note 72. 79 Id. 80 U.S. Government Accountability Office, “Central America: Information on 

Migration of Unaccompanied Children from El Salvador, Guatemala, and 

Honduras,” GAO-15-362 (Mar. 2015) at 4-9; http://www.gao.gov/products/

GAO-15-362 (accessed Mar. 4, 2016). 81 Review of the President’s Emergency Supplemental Request, supra note 73. 82 In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador 

and Guatemala (CAM), supra note 74. 83 Id.

Children) may then relocate to the United States upon 

being approved in country for refugee or parole status.84

Certain derivative beneficiaries may likewise qualify 

under CAM.85 As of April 23, 2015, almost 5 months into 

the program, DOS had received only 565 CAM-AORs.86

Less than a year later, by March 21, 2016, that figure had 

grown to 7,357 CAM-AORs representing 8,035 Qualifying 

Children and derivative beneficiaries.87

The vast majority of Qualifying Children, 86 percent, 

were located in El Salvador. Approximately 12 percent 

were located in Honduras and a little over 2 percent were 

in Guatemala.88 By far, Temporary Protected Status (TPS) 

was the immigration status held by the largest percentage 

of petitioning Qualifying Parents—approximately 89 

percent.89 Slightly more than eight percent were submitted 

by legal permanent residents.90 Other forms of lawful 

status held by a smaller percentage of Qualifying Parents 

included DACA, Deferred Action (non-DACA), parole, 

and withholding of removal.91 As of March 28, 2016, 

however, only 144 individual beneficiaries—46 refugees 

and 98 parolees—had arrived in the United States through 

the CAM program. Of those, 93 arrived from El Salvador, 

46 from Honduras and 5 from Guatemala.92 As of March 

21, 2016, 2,633 children in El Salvador, 38 in Guatemala 

and 175 in Honduras had not yet received a pre-screening 

interview.93 A total of 1,088 children had completed 

prescreening, but had not received DNA testing results, and 

1,143 children had not yet been interviewed to determine if 

they qualified for refugee or parole status.94

84 In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador 

and Guatemala (CAM), supra note 74. DOS Webpage, “In-Country Refugee/

Parole Program for Minors in El Salvador, Guatemala, and Honduras With 

Parents Lawfully Present in the United States” (Nov. 14, 2014); http://www.

state.gov/j/prm/releases/factsheets/2014/234067.htm (accessed May 16, 

2016). 85 In Country Refugee/Parole Processing for Minors in Honduras, El Salvador 

and Guatemala (CAM), supra note 74. 86 “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 Mar. 1, 2016). 87 Information provided by USCIS (Apr. 14, 2016). 88 Id. 89 Id. 90 Id. 91 Id. 92 Id. 93 Id. 94 Id.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 19

Ongoing Concerns

Length of Processing Timeframe. The current length of 

time for processing CAM applications poses significant 

risks for eligible minors in Central America, particularly 

those who face imminent danger.95 Many Qualifying 

Children who pursue protection through CAM do so in 

order to escape ongoing threats of immediate harm.96

Delays occur because domestic resettlement agencies that 

operate in coordination with DOS, and through which 

Qualifying Parents must file CAM-AORs, often lack the 

resources to quickly perform the associated intake and 

casework.97 Once the Qualifying Parent has filed the CAMAOR, the remaining case processing, including in-country 

Resettlement Support Center (RSC) prescreening, DNA 

testing, and USCIS adjudication, take many months, in 

some cases, close to a year.98 During this time, Qualifying 

Children often are vulnerable to serious harm, and in a few 

cases have been killed during the pendency of their cases.99

The current length of processing is a strong deterrent 

for eligible minors and their families who would seek 

protection through CAM but who feel they cannot risk 

remaining in country to complete the application process.100

Lack of Standardized Expedite Procedures and Safety 

Protocol. The dangerous conditions in El Salvador, 

Guatemala, and Honduras require that special safety 

and protection measures be taken to protect particularly 

vulnerable children seeking protection through CAM. 

Stakeholders report that RSCs have been responsive to 

requests for expedited case processing,101 but resettlement 

95 Information provided by stakeholders (Feb. to Apr. 2016). 96 Information provided by stakeholders. 97 Id. 98 Id. 99 Id. 100 Id. 101 Id.

Figure 2.2: Affidavits of Relationship Processed as of March 21, 2016 

 Category

El Salvador Guatemala Honduras Cumulative Total

Cases Individuals Cases Individuals Cases Individuals Cases Individuals

CAM-AORs Accepted 6,082 6,505 165 168 829 886 7,076 7,559

CAM-AORs Rejected 242 413 4 9 35 54 281 476

Total AORs 6,324 6,918 169 177 864 940 7,357 8,035

Source: Information provided by USCIS (Apr. 14, 2016).

agencies have not been provided with standardized 

expedite criteria and procedures by DOS and USCIS.102 In 

addition, CAM currently uses a single “child protection 

officer” to provide additional safety measures for minor 

applicants.103 The absence of systematic safeguards for 

particularly vulnerable children prevents the program from 

providing these children with a safe alternative to a crosscountry passage. 

Lack of Dedicated Funding. Domestic refugee 

resettlement agencies do not receive dedicated CAM 

funding, and consequently do not have resources devoted 

specifically to carrying out essential CAM operations. 

The functions vested in these agencies and their affiliates 

include CAM outreach and education, the provision of 

guidance to potentially eligible families, assistance with 

CAM-AOR filings, and ongoing CAM case management.104

Resettlement agencies report that approvals for parole do 

not qualify for reimbursement.105 Given that USCIS has 

approved a low number of CAM applications for refugee 

status, such reimbursement amounts have proven modest. 

As a result, some resettlement agency affiliates have opted 

out of providing CAM assistance; other affiliates can 

allocate only limited resources to the CAM program.106

The consequences of such underresourcing are widely felt 

by the agencies and applicants alike. Lack of dedicated 

funding results in insufficient CAM training for affiliate 

staff, limited public outreach by affiliates, lengthy wait 

times for some eligible families even prior to filing CAMAORs, and reduced efficiency in CAM case processing.107

Eligibility Criteria. The CAM eligibility criteria, while 

enabling thousands of deserving children to seek needed 

relief, does not benefit many vulnerable Central American 

minors who also need protection in the United States. 

102 Id. 103 Information provided by DOS (May 2, 2016). 104 Information provided by stakeholders. 105 Information provided by stakeholders; information provided by DOS (May 2, 

2016). 106 Information provided by stakeholders. 107 Information provided by stakeholders.
20 | ANNUAL REPORT TO CONGRESS JUNE 2016

While the 7,357 CAM-AORs received by March 21, 

2016108 signal a marked increase in program participation, 

the sustained number of UAC arrivals from the Northern 

Triangle to the southern U.S. border demonstrates that 

broader protections are needed.109 Stakeholders have raised 

concerns that the immigration statuses and categories that 

a Qualifying Parent must fall within to file a CAM-AOR, 

as well as the familial relationships contemplated by CAM, 

are too narrowly drawn, restricting the program’s ability to 

reach key populations of at-risk Central American youth.110

For example, parents are currently the only stateside 

relatives who may file a CAM-AOR, 111 a policy that 

prevents CAM from benefitting vulnerable children in 

the region who lack parents living in the United States. 

In addition, the CAM program does not recognize U, 

T, or VAWA statuses as categories under which a parent 

in the United States is eligible to file a CAM-AOR.112

Furthermore, although CAM permits certain biological 

parents who live with Qualifying Children in Central 

America to access the program if those parents are married 

to the stateside Qualifying Parents, that access is blocked 

if the in-country parent is not married to the Qualifying 

Parent, irrespective of the in-country parent’s relationship 

to and care of the Qualifying Children.113

DNA Testing Costs. The upfront costs borne by Qualifying 

Parents for mandatory DNA testing to confirm biological 

relationships with their Qualifying Children deters or 

delays participation in the CAM program. Although 

DOS provides reimbursement for these fees later in 

the application process, after the tests have confirmed 

relationships, stakeholders stress that the upfront costs 

are prohibitive for some eligible families.114 Families may 

require an extended period of time in which to acquire the 

needed funds,115 prolonging a case processing timeframe 

that already exacerbates the risks for eligible children. The 

overwhelming majority of DNA test results confirm childparent relationships. Of the 2,188 DNA results received, 

only 17 tests did not confirm a relationship.116

108 Information provided by USCIS (Apr. 14, 2016). 109 United States Border Patrol Southwest Family Unit Subject and 

Unaccompanied Alien Children Apprehensions Fiscal Year 2016, supra

note 72. 110 Information provided by stakeholders. 111 In Country Refugee/Parole Processing for Minors in Honduras, El Salvador 

and Guatemala (CAM), supra note 74. 112 Id. 113 Id. 114 Information provided by stakeholders. 115 Id. 116 Information provided by USCIS (Apr. 14, 2016). 

Public Awareness of CAM. Significant segments of potential 

Qualifying Parents in the United States and vulnerable 

minors in Central America are unaware of the CAM program. 

USCIS, together with DOS, has conducted extensive outreach 

in the United States to better educate the public.117 However, 

due to an absence of dedicated CAM funding, resettlement 

agencies often lack the resources to engage in their local 

communities.118 Moreover, to date, a much lower percentage 

of CAM applicants are located in Guatemala and Honduras 

than in El Salvador, raising concerns about the program’s 

visibility in those countries.119 In addition, stakeholders 

have noted that many nongovernmental organizations in the 

United States and Central America are unfamiliar with CAM 

and therefore ill-positioned to educate and assist potentially 

eligible parents and children.120

Refugee Grant Rates. In the CAM program, unlike in most 

refugee contexts, USCIS may consider on a case-by-case basis 

whether applicants denied refugee status nonetheless qualify 

for parole.121 While stakeholders voice support for this twopronged relief framework, they express concern that USCIS is 

not consistently receptive to valid refugee claims, particularly 

those based on membership in a “particular social group.”122

Ombudsman Engagement and Recommendations

The Ombudsman has conducted extensive engagement 

with stakeholders and government officials in the United 

States and abroad in connection with the CAM program. 

This includes meetings with DOS’ Bureau of Population, 

Refugees, and Migration and RAD to discuss current CAM 

policies and procedures. In May 2016, the Ombudsman and 

a team of subject matter experts visited Mexico, El Salvador, 

and Guatemala to learn more about CAM’s implementation 

abroad and the dangers facing minors in the region. During 

this trip, the Ombudsman met with foreign governments, 

USCIS and DOS officials, humanitarian organizations, and 

at-risk youth, and also observed RSC prescreenings and 

USCIS interviews of CAM applicants. Upon conclusion of 

this comprehensive engagement and study of CAM, and in 

response to the concerns addressed earlier in this section, 

the Ombudsman anticipates issuing an assessment and 

recommendations pertaining to the program’s operational 

structure and effectiveness under current eligibility 

requirements. 

117 Ombudsman’s Annual Report 2015, pp. 76-77. 118 Information provided by stakeholders. 119 Id. 120 Id. 121 In Country Refugee/Parole Processing for Minors in Honduras, El Salvador 

and Guatemala (CAM), supra note 74. 122 Information provided by stakeholders. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 21

The Haitian Family Reunification 

Parole Program 

Responsible USCIS Office: Refugee, Asylum and 

International Operations Directorate

USCIS launched the Haitian Family Reunification Parole 

(HFRP) program in 2014 to speed the reunification of 

Haitian families, boost remittances critical to the Haitian 

economy, and promote safe migration from Haiti to the 

United States.123 While lauding the establishment of HFRP, 

stakeholders have expressed concerns that too few Haitians 

are eligible for the program and face obstacles impeding 

realization of the program’s goals.

Background

HFRP authorizes certain Haitian beneficiaries of an approved 

Form I-130, Petition For Alien Relative, to enter the United 

States as parolees while awaiting availability of their 

immigrant visas.124 The DOS National Visa Center (NVC) 

initiates the HFRP application process by sending invitation 

letters to I-130 petitioners, prioritizing petitioners whose 

relatives in Haiti are an estimated 18 to 30 months from 

becoming eligible to receive immigrant visas.125 A USCIS 

service center conditionally approves or denies the submitted 

HFRP applications, sending conditionally approved 

applications to the USCIS Port-au-Prince Field Office.126

Initially, USCIS aimed to interview roughly 5,000 HFRP 

beneficiaries each year.127 As of December 31, 2015, the 

NVC had mailed 7,634 HFRP invitations, which identified 

14,099 beneficiaries eligible to participate in the program.128

By that same date, USCIS had accepted 3,789 HFRP 

applications from petitioners.129 Of those, USCIS issued 

123 “Implementation of Haitian Family Reunification Parole Program,” 79 Fed. 

Reg. 75581, 75581-82 (Dec. 18, 2014). 124 USCIS Webpage, “The Haitian Family Reunification Parole (HFRP) 

Program” (Jul. 7, 2015); http://www.uscis.gov/HFRP#Eligibility for HFRP

(accessed Mar. 2, 2016). 125 Implementation of Haitian Family Reunification Parole Program. 79 Fed. Reg. 

at 75583. 126 USCIS Webpage, “Number of Haitian Family Reunification Parole (HFRP) 

Program Applications as of December 31, 2015;” https://www.uscis.gov/sites/

default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20

Forms%20Data/Family-Based/HFRP_performancedata_fy2016_qtr1.pdf

(accessed Mar. 25, 2016). 127 Implementation of Haitian Family Reunification Parole Program. 79 Fed. 

Reg. at 75583. 128 Number of HFRP Program Applications as of December 31, 2015, supra 

note 126. 129 Id.

final approvals to only 432, and denied 158; 3,199 accepted 

applications had not yet received final decisions.130 On June 

6, 2016, USCIS announced it had issued a third round of 

HFRP invitations to eligible petitioners.131

Ongoing Concerns 

Stakeholders have voiced concern over the limits of 

HFRP’s current scope, centering on the modest number of 

beneficiaries made eligible for HFRP relative to the total 

number of Haitians awaiting immigrant visa numbers. The 

14,099 identified beneficiaries constitute roughly 12 percent 

of the 119,685 family-sponsored Haitian beneficiaries 

awaiting visa availability as of November 1, 2015.132

For some potential participants the filing fees are 

prohibitive; others do not perceive that the benefits of 

entering the United States faster by a few months outweigh 

the lower cost of consular processing.133 An individual 

who seeks parole through HFRP must pay $1,810 in 

filing fees to apply for work authorization and to adjust 

to permanent resident status.134 In contrast, the fees to 

consular process abroad, subsequently entering the United 

States as a permanent resident are less than half the amount 

at $610.135 Stakeholders note that this $1,200 difference 

is compounded for families that include more than one 

beneficiary, resulting in potential program participants 

opting out of HFRP.136 For the latter, the choice of waiting 

to consular process because of prohibitive filing costs 

means continued separation from family members, and 

challenging conditions in Haiti. 

Stakeholders suggest beneficiaries with a significantly 

longer wait would benefit from the advantages HFRP offers, 

including a longer period to earn the income needed to 

130 Id. 131 USCIS Email, “USCIS Message: Haitian Family Reunification Parole (HFRP) 

Program” (June 6, 2016) (copy on file with the Ombudsman). 132 DOL Webpage, “Annual Report of Immigrant Visa Applicants in the Familysponsored and Employment-based Preferences Registered at the National Visa 

Center as of November 1, 2015” https://travel.state.gov/content/dam/visas/

Statistics/Immigrant-Statistics/WaitingListItem.pdf (accessed Mar. 2, 2016); 

see also information provided by stakeholders (Feb. 19, 2016). 133 Information provided by stakeholders (Feb. 19, 2016). 134 HFRP Program, supra note 124. (the $1,810 total includes the $360 fee for 

Form I-131, Application for Travel Document, the $380 fee for Form I-765, 

Application for Employment Authorization, and the $1,070 fee for Form 

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

accompanying biometrics. The $1,810 figure does not include other potential 

associated costs). 135 USCIS Webpage, HFRP Program, supra note 124. (the $610 figure includes 

the $325 Immigration Visa Application Processing Fee, the $120 fee for DOS’ 

review of the Affidavit of Support, and the $165 USCIS Immigrant Visa Fee. 

The $610 figure does not include other potential associated costs). 136 Information provided by stakeholders (Feb. 19, 2016).
22 | ANNUAL REPORT TO CONGRESS JUNE 2016

pay adjustment of status fees. For this reason, and due to 

the concerns regarding the current scope of the program, 

stakeholders have urged the expansion of HFRP to include 

beneficiaries with expected visa eligibility dates beyond 

the current limit, proposing 4 to 5 years instead of 3 years.137

Finally, stakeholders point out some HFRP invitees have 

not provided USCIS and the NVC with updated mailing 

address information.138 As a result, these petitioners may 

not have received their invitations, leaving beneficiary 

relatives unaware they can benefit from the program.139

Engagement with the Haitian community, especially those 

present in the United States, should continue to reiterate 

the importance of maintaining a current address for each 

petition filed with USCIS, particularly after the petition has 

been approved and they await a current priority date. 

The Ombudsman has monitored the program’s 

implementation and conducted engagement with 

HFRP stakeholders during the reporting period. The 

Ombudsman will continue to track HFRP’s progress and 

explore potential measures to strengthen the number of 

beneficiaries benefitting from the program, including 

allowing beneficiaries with priority dates further out to 

qualify. Continued outreach to the affected community 

both in the United States and in Haiti would help ensure 

that petitioners’ mailing addresses are current and those 

potentially eligible for the program receive timely notice.

The Deferred 

Action for Childhood 

Arrivals Program

Responsible USCIS Office: Field Operations and 

Service Center Operations Directorates

Background

Implemented in late 2012, DACA has allowed 

approximately 723,282 recipients to live and work in 

the United States without fear of removal.140 USCIS has 

approved 502,018 applications renewing the ability of 

DACA recipients to remain and work in the United States 

since June 2014.141

137 Id. 138 Id. 139 Id. 140 Information received from USCIS (Apr. 14, 2016). 141 Id.

The number of renewal applications filed with USCIS 

declined during the 2016 reporting period.142 As a result, the 

related requests for case assistance to the Ombudsman have 

similarly fallen. However, issues remain in the processing 

of DACA applications—problems that are likely to continue 

during the upcoming renewal surge in the coming months.143

Ongoing Concerns

Impact of Travel on DACA Adjudications. In this 

reporting period, the Ombudsman received requests for 

case assistance involving NOIDs and denials issued to 

DACA renewal applicants based on USCIS’ conclusion 

that applicants impermissibly traveled outside an approved 

advance parole period.144 USCIS issues travel documents 

to eligible DACA recipients who wish to travel outside the 

United States for humanitarian, educational, or employment 

purposes.145 A travel document includes a “date issued” 

as well as an end date, representing the validity period 

for travel abroad. USCIS typically produces the travel 

document several weeks in advance of the “date issued” 

indicated on the advance parole document, and it requires 

that individuals travel after the “date issued” and return 

before the end date on the travel document.146

The requests for case assistance submitted to the 

Ombudsman during the reporting period generally involved 

travel outside the United States by DACA recipients who 

received the approved advance parole document but left a 

few days before the “date issued” because they were not 

aware of the significance of that date. The advance parole 

document does not make it clear that the “date issued,” 

noted in the upper right corner, is associated with the 

document’s validity for travel. In most cases, the “date 

issued” has no correlation to the actual date of issuance. 

142 Information received from USCIS (Apr. 14, 2016). 143 As we finalized this Report, the U.S. Supreme Court issued its decision in U.S. 

v. Texas, 579 U.S. ___ (June 23, 2016), leaving the court of appeals ruling 

in place and prohibiting implementation by DHS of the Deferred Action for 

Parents of American and Lawful Permanent Residents program (DAPA) and 

the expansion of the DACA program. The current DACA policy, however, 

remains in place. 144 Information provided through requests for case assistance. 145 USCIS Webpage, “Frequently Asked Questions” (June 15, 2015) (last 

reviewed/updated Mar. 2016); https://www.uscis.gov/humanitarian/

consideration-deferred-action-childhood-arrivals-process/frequently-askedquestions (accessed Mar. 25, 2016) (Question 57: “Generally, USCIS will 

only grant advance parole if your travel abroad will be in furtherance of: 

humanitarian purposes, including travel to obtain medical treatment, attending 

funeral services for a family member, or visiting an ailing relative; educational 

purposes, such as semester-abroad programs and academic research; or 

employment purposes such as overseas assignments, interviews, conferences 

or, training, or meetings with clients overseas”). 146 “Instructions for Application for Travel Document” (Form 1-131) (Jan 22, 

2016); https://www.uscis.gov/sites/default/files/files/form/i-131instr.pdf

(accessed May 20, 2016). 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 23

Affected customers reported they travelled in good faith, 

with the advance parole document in hand.147 A reasonable 

person could conclude that travel after receipt of the 

advance parole document is permissible, irrespective of the 

“date issued.” 

To highlight the significance of the “date issued,” the 

Ombudsman recommends that USCIS:

 Engage with the public to ensure DACA grantees 

understand the importance of advance parole issue and 

end dates;

 Add clarifying instructions to the Form I-131, 

Application for Travel Document and the advance 

parole approval notice;

 Redesign the advance parole document (I-512) to make 

the permissible period of travel clearer; and 

 Revise the language in the DACA FAQs to highlight 

the importance of traveling within the approved period 

of an advance parole.148

Denials and Lack of Review. USCIS does not have an 

appeal process or option for a motion to reopen or reconsider 

DACA denials. Individuals may request review of a denial 

decision through the Service Request Management Tool 

(SRMT) process if they can demonstrate the denial involves 

one of the eight administrative errors listed in the DACA 

FAQs.149 A vast majority of DACA denial requests for case 

assistance submitted to the Ombudsman do not involve one 

of these eight administrative errors and are therefore not 

reviewable through the SRMT process. 

During this reporting period, the Ombudsman received 59 

requests for case assistance that sought reconsideration 

of DACA denials. Most of these inquiries pertained to 

certain eligibility criteria (current enrollment in school, 

completion of an eligible educational program, or 

continuous residence) and denials based on criminal arrests 

or convictions. 

Applicants whose applications are denied for failure to 

meet the education requirement receive denial notices 

stating that they have not shown enrollment in or 

completion of an educational program.150 This general 

denial language can be confusing to applicants because 

147 Information provided through requests for case assistance. 148 Letter from the Ombudsman to Alejandro Mayorkas, Deputy Secretary of 

Homeland Security (Jul. 15, 2015) (copy on file with the Ombudsman). 149 Frequently Asked Questions, supra note 145 (Question 25). 150 Information provided through requests for case assistance.

it does not acknowledge USCIS’ review of the evidence 

submitted in support of the educational requirement. 

For example, USCIS may deny an application despite 

receiving a diploma because it does not recognize 

the educational institution as an eligible accredited 

institution.151 In the absence of clear-cut explanatory 

language in the denial letter indicating why the evidence 

submitted is insufficient, applicants are unable to 

determine the underlying cause of the denial and make 

informed decisions about the steps required to refile 

successfully. USCIS can address this issue by adding case 

specific language to denials addressing why the evidence 

was deficient and did not meet the education requirement. 

The Ombudsman also received requests for case assistance 

from applicants who were unable to show continuous presence 

since June 15, 2007 because the documentary evidence was 

unavailable or the affidavits they provided were insufficient 

according to USCIS. In particular, homeless, abused, or 

abandoned youth are at a disadvantage in showing continuous 

presence due to lack of access to documentary evidence.

In addition, several cases assistance requests involved denials 

based on criminal arrests or convictions. A subset of these cases 

involved denials based on the applicants’ failure to provide 

court dispositions for juvenile criminal records. Denials for 

failure to provide court dispositions are problematic because 

some states prohibit the disclosure of juvenile records, 

making it impossible for the applicant to comply.152

Recommendation

The Ombudsman continues to recommend that USCIS 

offer the option of a substantive review of denials based on 

grounds other than the administrative errors listed in the 

DACA FAQs. This would provide an opportunity to present 

reasons why the adjudication was incorrect and how the 

application warrants a favorable exercise of discretion. 

A robust review process will increase consistency in 

adjudications and afford eligible undocumented youth 

better access to DACA.

151 See generally, Frequently Asked Questions, supra note 145 (Questions 33-40). 152 States vary considerably in the extent to which a juvenile record can be 

disclosed, viewed, copied, and shared. See, e.g., California Welfare & 

Institutions Code § 827.9 (“Confidentiality is necessary to protect those 

persons from being denied various opportunities, to further the rehabilitative 

efforts of the juvenile justice system, and to prevent the lifelong stigma that 

results from having a juvenile police record.”) 
24 | ANNUAL REPORT TO CONGRESS JUNE 2016

Provisional Waivers 

Responsible USCIS Office: Field 

Operations Directorate

The Provisional Unlawful Presence Waiver (Provisional 

Waiver) preserves family unity, allowing qualified 

applicants to remain in the United States with their 

families while USCIS determines eligibility for waivers 

of the 3-year and 10-year unlawful presence bars.153

From April 1, 2015 through December 31, 2015, USCIS 

received 36,794 provisional waiver applications and issued 

26,258 approval notices, 7,702 denial notices, and 11,435 

RFEs. It also reopened 294 requests that were previously 

denied.154 During this period, USCIS adjudicators provided 

more detailed explanations in RFE and denial letters,155

particularly when denials were based upon a “reason to 

believe” the applicant was subject to another ground of 

inadmissibility or failed to meet the extreme hardship 

requirement.156The Ombudsman has observed, however, 

that USCIS continues to deny valid waiver applications by 

inconsistently applying the preponderance of the evidence 

standard when evaluating all of the extreme hardship 

evidence presented by the applicant. As a result, the 

Ombudsman supports USCIS’ efforts to finalize guidance 

setting forth clear extreme hardship standards.

153 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. 

L. No. 104-208, 110 Stat. 3009-546. INA § 212 (a)(9)(B)(i)(I), commonly 

known as the 3-year bar, refers to the time an individual is barred from 

returning to the United States. The 3-year bar 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), commonly known as the 10-

year bar, is triggered by 1 year or more of unlawful presence and a departure 

from the United States, followed by seeking readmission. 154 Information provided by USCIS (Apr. 6, 2016). Although requested, USCIS 

did not provide data for the number of receipt, approval, RFE, or reopening 

notices issued during the current reporting period. USCIS did provide data 

for the number of denials issued between April 1, 2015 and March 12, 2016, 

which is outlined in Figure 2.3. 155 The lack of detail in RFEs and summary denials was discussed in some detail 

in the Ombudsman’s Annual Report 2015, pp. 23-24. 156 USCIS categorizes extreme hardship to the qualifying relative under five 

groups: health-related factors, financial considerations, education-related 

factors, personal considerations, and special factors. However, “extreme 

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

defined by the federal courts. USCIS states it “will consider all factors and 

supporting evidence that an applicant submits” to make a determination on the 

provisional waiver application. See “Provisional Unlawful Presence Waivers 

of Inadmissibility for Certain Immediate Relatives; Final Rule,” 78 Fed. Reg. 

535, 551 (Jan. 3, 2013). 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 

Feb. 9, 2016).

Background 

USCIS implemented the Provisional Waiver program on 

March 4, 2013 to reduce family separation for certain 

immediate relatives who can demonstrate “extreme 

hardship” to a U.S. citizen spouse or parent and do not have 

any grounds of inadmissibility other than unlawful presence 

as defined in section 212(a)(9)(B) of the Immigration and 

Nationality Act (INA).157 All Forms I-601A, Application 

for Provisional Unlawful Presence Waiver, are filed and 

adjudicated at the National Benefits Center (NBC) to allow 

for uniform adjudication and coordination with the DOS 

once the waiver is approved.158

USCIS Proposed Rule. On July 22, 2015, in response to 

Secretary Johnson’s memorandum directing the agency 

to expand the Provisional Waiver program,159 USCIS 

published a proposed rule to amend the 2013 regulation to 

allow all individuals statutorily eligible for the unlawful 

presence waiver who can establish extreme hardship to 

any qualifying relative to participate in the program.160 The 

proposed rule also would expand the provisional waiver 

to the spouse and child of legal permanent residents if the 

qualifying relative(s) would experience extreme hardship 

due to separation from or relocation with the applicant. 

USCIS received 641 comments by the close of the 

comment period (September 21, 2015).161 The agency is in 

the process of reviewing and responding to these comments 

as it drafts the final rule, which was scheduled for 

publication in spring 2016.162

USCIS Draft Policy Guidance. On October 7, 2015, in 

response to the November 2014 directive from Secretary 

Johnson,163 USCIS issued draft guidance pertaining to the 

157 Provisional Unlawful Presence Waivers of Inadmissibility for Certain 

Immediate Relatives; Final Rule, 78 Fed. Reg. at 535. 158 This process is consistent with the centralized processing of Forms I-601, 

which was one of the recommendations made by the Ombudsman in 

2010. See Ombudsman’s Recommendation 45, “Processing of Waivers of 

Inadmissibility” (June 10, 2010). See also Ombudsman Recommendation 

Update: USCIS Processing of Waivers of Inadmissibility (Dec. 7, 2011). 159 Expansion of the Provisional Waiver Program, supra note 156. 160 “Expansion of Provisional Unlawful Presence Waivers of Inadmissibility,” 80 

Fed. Reg. 43338 (July 22, 2015). 161 Federal eRulemaking Portal Web page, www.regulations.gov; Docket ID 

USCIS-2012-0003-3771 (accessed Feb. 19, 2016). 162 Current Unified Agenda and Regulatory Plan, Fall 2015, “DHS/

USCIS Final Rule: Expansion of Provisional Waivers of Unlawful 

Presence Waivers of Inadmissibility,” http://www.reginfo.gov/public/do/

eAgendaViewRule?pubId=201510&RIN=1615-AC03; Ombudsman’s Annual 

Conference 2015. 163 Expansion of the Provisional Waiver Program, supra note 156.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 25

“extreme hardship” standard for public comment.164 The 

draft guidance provides factors the agency will consider 

when making an extreme hardship determination,165 as well 

as a list of special circumstances that “strongly suggest 

extreme hardship.”166 The draft policy specifies that 

extreme hardship determinations are to be made based on 

the totality of the circumstances, rather than any one factor, 

and that the grant of the waiver is a matter of discretion.167

The draft guidance also incorporates a significant change 

taken from USCIS’ proposed rule that the qualifying 

relative would need to prove extreme hardship due to 

separation from or relocation with the applicant, or both.168

As this Report is being finalized, the draft guidance has not 

been issued in its final form. 

Ongoing Concerns 

Since USCIS implemented the Provisional Waiver program 

2 years ago, the Ombudsman has received over 300 

requests for case assistance; the last reporting period saw 

a 92 percent increase in requests. Of the requests received 

during the 2016 reporting period, 55 percent involved 

substantive issues such as “extreme hardship” denials; 

“reason to believe” denials on grounds other than unlawful 

presence, including fraud and smuggling grounds; and 

USCIS applying a standard higher than preponderance 

of the evidence.169 USCIS has taken the position it will 

not reconsider I-601A denials where information in its 

databases indicate applicants committed fraud or were 

apprehended for smuggling.170 USCIS has also taken the 

position that an applicant who re-entered the United States 

after previously accruing unlawful presence, even if the 

applicant was a minor when the prior unlawful presence 

was accrued, is subject to the previous violator bar under 

164 Draft USCIS Policy Manual, Volume 9: Waivers Part B: Extreme Hardship 

(Oct. 7, 2015); https://www.uscis.gov/sites/default/files/USCIS/Outreach/

Policy%20Review/DRAFT_Extreme_Hardship_Policy_Manual_Guidance_

for_public_comment.pdf (accessed Feb. 9, 2016). 165 Id. (USCIS lists the following factors and considerations for extreme hardship: 

family ties and impact, social and cultural impact, economic impact, health 

conditions and care, and country conditions. USCIS notes that this list is not 

exhaustive). 166 Id. (Special circumstances include (1) Qualifying Relative (QR) previously 

granted asylum or refugee status; (2) QR or related family member’s 

disability; (3) QR’s active duty military service; (4) DOS warnings against 

travel to or residence in certain countries; and (5) substantial displacement of 

care of applicant’s children). 167 Id. at 26-28. 168 Id. 169 Information provided through requests for case assistance. USCIS has denied 

applications where applicants had minor criminal arrests or convictions for 

minor offenses. Ombudsman’s Annual Report 2014, p. 11. 170 Information provided through requests for case assistance. 

INA section 212(a)(9)(C).171 In addition, the Ombudsman 

has noticed an increase in requests for case assistance 

due to I-601A applications pending outside posted 

processing times.172 USCIS reported a substantial increase 

in processing times from 3 months in December 2015 to 5 

months in February 2016.173

During the reporting period, the Ombudsman received 

over 20 requests for case assistance where USCIS denied 

I-601A applications because the DOS system did not 

reflect payment of the immigrant visa fee, even where the 

applicant submitted a copy of the DOS fee payment receipt 

to USCIS with the application.174 It was later determined 

that the DOS system accidentally deleted payment records 

for a number of applications during the summer of 2015, 

and USCIS stated it would identify and reopen these 

cases.175 USCIS has not yet disclosed whether it has notified 

all of the identified applicants or their legal representatives 

of the error and reopened their applications. In cases where 

the Ombudsman intervened, USCIS is reviewing and 

171 Information provided through requests for case assistance. 172 Id. 173 USCIS Processing Times posted on December 22, 2015 and March 14, 2016. 174 Information provided by American Immigration Lawyers Association (AILA) 

and requests for case assistance (Nov. 9, 2015). AILA also presented to USCIS 

14 cases that USCIS improperly denied due to failure to pay the immigrant 

visa fee. USCIS agreed to reopen all of these cases. Information provided by 

USCIS (Dec. 7, 2015). USCIS identified a total of 4,706 I-601A applications 

that were denied and affected by the DOS fee issue since 2013. Of the 4,706, 

USCIS stated it improperly denied 186 applications due to the immigrant visa 

fee issue with the DOS system and that it is in the process of retrieving the 

files to issue reopening notices where appropriate. 175 Information provided by USCIS (Dec. 7, 2015).

Request for Case Assistance: Denial based on failure to 

establish continuous residence

A 24 year-old applicant entered the United States in 

2005 and submitted a DACA application in March 2015 

with numerous documents demonstrating her continuous 

presence, but did not have documents demonstrating 

her presence for one year due to abusive circumstances 

(resulting in her not working or going to school). In response 

to an RFE, the applicant submitted a declaration explaining 

the extenuating circumstances during that year and why 

she was unable to provide documentation for this period 

of time. In addition to her own statement, the applicant 

submitted two declarations from friends stating that they 

had visited with the applicant during 2009. Nonetheless, 

despite the Ombudsman’s intervention, USCIS denied the 

DACA application and declined to reopen it. 
26 | ANNUAL REPORT TO CONGRESS JUNE 2016

reopening applications that meet qualifying criteria for 

further adjudication.176

The Ombudsman recognizes the determination of whether 

the identified hardships are “extreme” requires a caseby-case evaluation of all evidence and the totality of the 

circumstances. It is the adjudicator who affords weight 

to the evidence and makes a discretionary decision. 

A review of the requests for case assistance received 

this reporting period, however, show inconsistencies in 

USCIS’ application of the preponderance of the evidence 

standard regarding the requirement of extreme hardship. 

Without a formal appeal process, many applicants turn to 

the Ombudsman for assistance seeking further review of 

waiver applications. 

USCIS has also denied applications on the “reason to 

believe” ground without providing a detailed explanation 

for the decision. Currently, the only option to obtain this 

information is to file Freedom of Information Act (FOIA) 

requests. The request must be filed not only with USCIS, 

but also CBP, ICE, FBI, and DOS to determine whether the 

applicant’s record contains any evidence that would give 

USCIS a reason to believe the applicant may be subject to 

176 Information provided through requests for case assistance. 

another ground of inadmissibility, such as prior unlawful 

entries, fraud, or apprehensions. USCIS should issue clear 

decisions delineating the specific incident or issue that led 

to the denial on the basis it had “reason to believe” the 

applicant is subject to additional grounds of inadmissibility. 

Templated denials do not provide adequate notice to 

applicants or a fair process to adequately address issues 

of ineligibility. 

Expansion of the provisional unlawful presence waivers is 

a significant aspect of executive action. The Ombudsman 

welcomes the proposed regulatory amendments to expand 

the program to all statutorily eligible applicants, and 

the draft policy guidance clarifying factors and special 

circumstances to consider when determining extreme 

hardship, and will monitor I-601A adjudications as USCIS 

officers are trained to implement its final rule and policy 

guidance. The Ombudsman also continues to urge USCIS 

to give applicants the option to file Motions to Reopen/

Reconsider or appeal denials of provisional waiver 

requests, which is essential to achieving full program 

integrity through a review of errors of law, interpretation of 

facts, application of relevant policy, and inconsistencies in 

the agency’s exercise of discretion.

Figure 2.3: I-601A Denials Issued between April 1, 2015 and March 12, 2016

Denial Grounds Total Percent by Type

Total 9,189

Abandonment Denial 641 7.28%

Administratively Closed 340 3.92%

Denied—Discretion 2 0.02%

Denied—In Removal Proceedings 114 1.28%

Denied—May Be Subject to Additional Grounds of Inadmissibility 2,929 32.92%

Denied—No Approved Immediate Relative or Widow(er) Petition 145 1.70%

Denied—No Extreme Hardship to Spouse or Parent 3,999 41.45%

Denied—No Qualifying Relative 305 3.42%

Denied—Other 206 2.08%

Denied—Pending Adjustment of Status 24 0.29%

Denied—Prior I-601A 0 0.00%

Denied—Scheduled Interview Prior to January 3, 2013 8 0.08%

Denied—Subject to Final Removal Order 433 5.04%

Withdrawn 45 0.53%

Source: Information provided by USCIS (Apr. 6, 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 27

Recommendation Update: 

Special Immigrant Juveniles

Responsible USCIS Offices: Field Operations 

Directorate, Office of Policy and Strategy, and 

Office of Chief Counsel

For more than 25 years, the Special Immigrant Juvenile 

(SIJ) program has protected vulnerable youth in the United 

States who would be at risk if returned to their country of 

nationality or residence.177 The program relies on the “best 

interests of the child” standard to protect children who 

cannot be reunified with one or both parents as a result of 

abuse, neglect, abandonment, or a similar basis under state 

law.178 Congress has entrusted state courts to make these 

determinations179 while acknowledging only DHS can issue 

immigration benefits.180

SIJ is a complex benefit adjudication that has undergone 

substantial statutory changes, which now supersede existing 

regulations.181 State courts play an important role in the 

SIJ adjudication process by establishing requisite findings 

under state law. After the state court issues an order, USCIS 

grants or denies SIJ immigration benefits.182

In response to concerns and requests for assistance 

received from the public, on December 11, 2015, the 

Ombudsman issued a second formal recommendation on 

the SIJ program.183 The recommendation focused largely 

on USCIS’ practice of requesting evidence to review the 

state court process and findings before the agency will 

consent to SIJ status.184 Specifically, the recommendation 

addressed the USCIS practice of reviewing underlying facts 

of abuse, abandonment, neglect—evidence that has already 

177 See Immigration Act of 1990, Pub. L. No. 101–649 at § 153(a)(3)(J), 104 Stat 

4978 (Nov. 29, 1990). 178 INA § 101(a)(27)(J)(i),(ii) (setting forth the requirements for the SIJ 

classification). 179 INA § 101(a)(27)(J)(i),(ii); H.R. Conf. Rep. 105-405, at 130 (Nov. 13, 1997). 180 See INA § 101(a)(27)(J)(iii). 181 Congress amended the SIJ classification under the TVPRA. SIJ regulations 

have not been updated since 1993. “Special Immigrant Status; Certain Aliens 

Declared Dependent on a Juvenile Court, Final Rule,” 58 Fed. Reg. 42843, 

42847 (Aug. 12, 1993). 182 See INA § 101(a)(27)(J)(iii). 183 Ombudsman Recommendation 59, “Ensuring Process Efficiency and Legal 

Sufficiency in Special Immigrant Juvenile Adjudications” (Dec. 11, 2015). 

The Ombudsman released a previous formal recommendation on the SIJ 

program in 2011, Ombudsman Recommendation 47, “Special Immigrant 

Juvenile Adjudications: An Opportunity for Adoption of Best Practices” (Apr. 

15, 2011). 184 The Secretary of DHS, through USCIS, must “consent ... to the grant of 

special immigrant juvenile status[.]” INA § 101(a)(27)(J)(iii).

been evaluated by a state court—as well as drafting legal 

opinions determining whether courts have exercised their 

jurisdiction properly. The Ombudsman’s recommendation 

also discussed the disproportionate weight USCIS applies 

to forms completed during CBP intake procedures,185

burdensome RFEs, and interviews that are not ageappropriate. 

The Ombudsman recommended that USCIS: (1) centralize 

SIJ adjudications in a facility whose personnel are familiar 

with the sensitivities surrounding the adjudication of 

humanitarian benefits for vulnerable populations; (2) take 

into account the best interests of the child when applying 

criteria for interview waivers; (3) issue final SIJ regulations 

that fully incorporate all statutory amendments; and (4) 

interpret the consent function consistently with the statute 

by according greater deference to state court findings.186

Since the release of the Ombudsman’s recommendation, 

concerns regarding how USCIS is exercising its “consent” 

authority remain. In addition to concerns covered by the 

recommendation, the Ombudsman has received reports 

USCIS is not granting consent if state courts issued orders 

that appear limited in timeframe or are continued for 

subsequent hearings, or are in any way “temporary.”187

State courts issue temporary orders that allow them to 

monitor the progress of minors, rehabilitation of parents, or 

to appoint care-givers and potential custodians to care for 

the minors.188 The temporary nature of the state court order 

is not relevant to the factual findings supporting an SIJ 

petition. Those findings—abuse, abandonment, neglect, or 

similar behaviors that occurred and prevented a child from 

reunifying with a parent(s)—are not temporary in nature as 

they occurred at a fixed time in the past. The appointment 

of temporary guardians and custodians pursuant to these 

findings of fact should not invalidate the state court order 

supporting SIJ eligibility. 

USCIS has communicated that temporary orders generally 

are not sufficient for SIJ purposes, relying on a statutory 

185 During the processing of individuals immediately after their apprehension, 

CBP officers complete a form titled “Record of Deportable/Inadmissible 

Alien” (Form I-213). Through stakeholder engagements and requests for 

assistance, the Ombudsman has learned that the vulnerable state of children 

when they are interviewed after apprehension, often in a detention setting, has 

contributed to errors on the forms. In addition, stakeholders have shared that 

USCIS accords significant weight to information on these forms and if the 

information on the form differs from accounts children later give to a judge or 

USCIS, this information may be considered an indicator of fraud. 186 Ombudsman Recommendation 59, “Ensuring Process Efficiency and Legal 

Sufficiency in Special Immigrant Juvenile Adjudications” (Dec. 11, 2015). 187 Information received from stakeholders. 188 Ombudsman interviews with state court judges and attorneys.
28 | ANNUAL REPORT TO CONGRESS JUNE 2016

provision that expanded protections for UACs.189 The 

provision upon which USCIS is relying states that 

departments, state agencies, and individuals appointed by 

courts and “acting in loco parentis, shall not be considered...

legal guardian[s].”190 USCIS has interpreted this language 

to mean that temporary court orders are not sufficient for 

SIJ purposes because short-term court-appointed caregivers should not be regarded as legal guardians.191 USCIS’ 

interpretation of temporary legal guardians, even if not 

intended, may extend to bar UAC-based protections to all 

children under court orders that grant short-term custody to 

the U.S. Government,192 a foster home, or any legal guardian, 

out of necessity due to abuse, abandonment, neglect, or 

a similar risk under state law. The agency’s treatment of 

temporary orders, if continued, limits the reach of the SIJ 

program in ways Congress did not intend.193

In May 2016, the Ombudsman requested that USCIS 

amend posted educational materials for state court judges 

and child welfare professionals to remove language stating 

temporary orders generally would not be sufficient. USCIS 

189 Information provided by stakeholders, including RFEs and NOIDS citing 

TVPRA. 190 TVPRA § 235(d)(5). 191 Information provided by stakeholders, including RFEs and NOIDs citing 

TVPRA. 192 The U.S. Department of Health and Human Services (HHS) has statutory 

authority and responsibility over the care and custody of unaccompanied 

immigrant children. See 6 U.S.C. § 279. 193 The definition of an unaccompanied immigrant child includes a child who 

has “no parent or legal guardian in the United States.” 6 U.S.C. § 279(g)

(C)(i). USCIS appears to rely on this language to exclude SIJ petitioners 

with temporary orders because custodians “acting in loco parentis, shall 

not be considered a legal guardian for purposes of this section [§ 235 of the 

TVPRA] or § 462 of the Homeland Security Act of 2002 (6 U.S.C. § 279).” 

By referencing § 235 of the TVPRA and 6 U.S.C. § 279, Congress preserved 

the ability for minors to fit within the definition of UAC and qualify for the 

care and protection of HHS. Congress also preserved the UAC protections 

of TVPRA § 235 in its entirety, rather than exclude children with temporary 

guardians from a subsection of vital SIJ protections. 

added language explicitly stating the important role of 

the juvenile court in the applications process and further 

clarified what supporting documentation USCIS requires to 

support the application.

On April 22, 2016, the Ombudsman received USCIS’ 

response to its December 2015 recommendations regarding 

aspects of the SIJ program.194 USCIS accepted the 

Ombudsman’s recommendation to centralize adjudication 

of SIJ petitions and SIJ-related adjustment applications at 

the NBC.195 The Ombudsman has requested a review of 

USCIS training materials being developed for centralized 

SIJ adjudicators and will continue to monitor the 

implementation of this important change. USCIS stated that 

numerous offices and directorates in addition to the Fraud 

Detection and National Security Division (FDNS) are 

providing input on interview waiver criteria, specifically 

mentioning the Office of Policy and Strategy and the Office 

of Chief Counsel.196 We presume the contributions of these 

other offices will be weighed and prioritized evenly with 

the interests of FDNS. In response to a call for updating 

the regulations implementing SIJ, USCIS explained that 

the process is ongoing but anticipates it will issue policy 

guidance later in 2016 to clarify and consolidate SIJ 

policies in the short term.197

194 USCIS Response, “Response to Recommendations on Special Immigrant 

Juvenile Adjudications” (Apr. 19, 2016); https://www.dhs.gov/sites/default/

files/publications/USCIS%20Reponse%20to%20CISOMB%20SIJ%20

Recommendation%20R.pdf (accessed June 13, 2016). 195 Id. 196 Id. With respect to this recommendation, the Ombudsman notes that USCIS 

misstated the Ombudsman’s discussion of FDNS’ role. The Ombudsman 

did not assume that FDNS was the only component developing interview 

waiver criteria, only that FDNS’ input should not be prioritized over other 

components. The Ombudsman reiterates that recommendation here. 197 Id.

Figure 2.4: Top 5 Offices for SIJ Receipts, RFEs, NOIDs, and Denials 

(Oct. 1, 2013 to May 27, 2015) 

Total Receipts Total RFEs*** Total NOIDs*** Total Denials

New York** (432) San Antonio (266) Charlotte (66) New York* (107)

Atlanta (305) Washington (63) San Antonio (25) Newark (50)

San Antonio (247) Harlingen (36) Chicago (10) Charlotte (47)

Dallas (240) Kansas City (17) New York** (12) Harlingen (45) 

Baltimore (232) Norfolk (12) Los Angeles  (10) San Antonio (27)

** Cumulative total from 3 field offices that share overlapping jurisdictions (New York, Long Island, and Queens) 

***199 RFEs and 105 NOIDs did not have an identifiable field office 

**** Cumulative total from 3 field offices that share overlapping jurisdictions (Los Angeles, Los Angeles County, and Santa Ana)

Source: Information provided by USCIS, May 29, 2015. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 29

While it is encouraging that USCIS is continuing to 

move toward centralizing SIJ adjudications and finalizing 

regulations implementing the program, the agency failed 

to acknowledge other needed changes, such as the manner 

in which it exercises its consent authority. As a result, 

USCIS will continue to exercise its consent authority in 

ways that yield confusion, cause adjudication delays, and 

result in contentious denials. USCIS also did not respond 

to the Ombudsman’s recommendation regarding interview 

techniques in the SIJ context. As a result, the agency 

has missed an opportunity to commit to age-appropriate 

interviewing techniques. 

Further complications for the SIJ program were announced 

on April 12, 2016, when the DOS issued the May 2016 Visa 

Bulletin.198 The EB-4 category, where SIJ visa numbers 

are located, retrogressed for applicants from El Salvador, 

Guatemala, and Honduras.199 This meant no visa numbers 

would be available for SIJ applicants from those countries 

whose applications for adjustment of status were received 

after January 1, 2010.200 Though some SIJ applicants 

were able to submit Form I-485, Application to Register 

Permanent Residence or Adjust Status before the end of 

April, all adjustment applicants must wait for new visa 

numbers to become available before adjusting to permanent 

resident status through the SIJ program. 

The inability to file to adjust status presents enormous 

challenges for this population of children. Without a 

permanent resident card or a pending application for a 

198 “Visa Bulletin For May 2016,” DOS Webpage (Apr.12, 2015); https://travel.

state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-formay-2016.html (accessed May 4, 2016). 199 Id. 200 Id.

permanent resident card, they lack, among other things, 

an important form of identification, the ability to work 

(for those old enough to do so), and a sense of stability. 

In addition, these particularly vulnerable children may be 

subject to removal. These severe consequences call for 

USCIS to provide assurance that children with approved 

Forms I-360, Petition for Amerasian, Widow(er), or Special 

Immigrant will not be subject to immigration enforcement 

and will have access to employment authorization while 

they wait for visa numbers to become available again.

The Ombudsman will continue monitoring USCIS’ 

centralization of SIJ adjudications; training of staff; 

development of interview waiver criteria; compliance 

with statutory processing times;201 and release of 

regulations, policies and practices for granting consent. 

In addition, the Ombudsman will continue engaging with 

stakeholders locally and nationally to learn more about 

these issues and the impact of visa retrogression on this 

vulnerable population. 

201 TVPRA §235(d)(2) requires that USCIS complete SIJ adjudications within 

180 days of filing. 
30 | ANNUAL REPORT TO CONGRESS JUNE 2016

Interagency, Customer Service,

and Process Integrity

Applicants and petitioners continue to experience delays in 

receiving their immigration benefits. In this Annual Report, the 

Ombudsman delves into the background checks and security 

screening process. The Ombudsman continues to focus on the 

proper delivery of USCIS notices and documents, USCIS’ 

processing times, and efforts in implementing Transformation. 

The Ombudsman also encourages USCIS and DOS to continue 

to work together to resolve issues pertaining to consular returns.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 31

Processing Times and 

Processing Delays

Responsible USCIS Offices: Service Center 

Operations and Field Office Directorates, and 

Office of Performance and Quality 

Stakeholders seeking immigration benefits have long been 

frustrated with the way posted processing times seem 

to bear little resemblance to their own experiences. The 

manner in which processing times are determined and 

presented is confusing, and the delays between calculation 

and posting leave considerable room to doubt their accuracy. 

More importantly, however, posted processing times now 

exceed certain mandates set out in statute and regulations, or 

are beyond internal processing goals. Over the last several 

years, the Ombudsman has raised awareness of the steady 

increase in adjudication times for a number of benefits, from 

naturalization to employment authorization to extensions 

for nonimmigrant workers. The Ombudsman’s analysis 

confirms increases in USCIS processing times across the 

entire spectrum of immigration benefit applications. As this 

Report is being finalized, it is evident that processing times 

are being missed on major product lines.202

During a recent public teleconference with the 

Ombudsman, USCIS conceded that its methods of 

calculating and posting processing times need improvement 

and that the agency is actively working toward that 

202 For example, in the first quarter of 2016, the processing goal for naturalization 

applications of 5 months was only met in 33 of 85 adjudication offices (field 

offices and service centers) (or approximately 39 percent); the processing 

goal for adjustment of status applications of 4 months was being met in fewer 

than 8 of 91 adjudication offices (approximately 12 percent). In the business 

product line, the processing goal for H-1B petitions was not being met in 

either service center adjudicating them. In other areas, USCIS exceeded the 

processing goal of 3 months for Form I-751, Petition to Remove Conditions 

on Residence in FY 2015, in which the average processing time was 6.8 

months. Information provided by USCIS (Apr. 14, 2016); see also USCIS 

Webpage, “USCIS Processing Time Information;” https://egov.uscis.gov/cris/

processTimesDisplayInit.do (accessed June 2, 2016). 
32 | ANNUAL REPORT TO CONGRESS JUNE 2016

goal.203 The Ombudsman commends USCIS for this 

commitment to improved transparency and looks forward 

to enhanced reporting accuracy. However, USCIS also 

needs to commit to the use of real time data to develop 

reports that better reflect true processing times, with the 

goal of adequately resourcing product lines and improving 

the full adjudication cycle. The Ombudsman urges the 

agency to undertake concrete and holistic measures to 

address lengthening processing times as a serious and 

pervasive issue for the agency—perhaps the most important 

operational issue facing the agency today. 

Background 

Goals for the completion of adjudication (processing time 

goals) for some immigration benefit filings are established 

by statute.204 USCIS has also committed itself through 

regulation to a processing time goal for some product 

lines.205 For other immigration filings, USCIS publicly 

announces processing time goals.206 USCIS committed 

itself to meeting new and aggressive processing time goals 

as it implemented a new Fee Rule in 2007 in some of its 

largest product lines: Form I-485, Application to Register 

Permanent Residence or Adjust Status and Form N-400, 

Application for Naturalization.

207 In short, USCIS is 

charged with taking processing times and goals seriously.208

Processing times are provided to inform customer 

expectations on how long the agency is taking to adjudicate 

203 Ombudsman’s Teleconference, “Processing Times” (Apr. 27, 2016); https://

www.dhs.gov/ombudsmans-public-teleconference-series (accessed June 6, 

2016). 204 For example, there is a statutory requirement of 30 days for Form I-129L, 

Petition for Nonimmigrant Managers and Executives, INA § 214(c)(2)(C); 180 

days for Form I-360, Petition for Amerasian, Widow, or Special Immigrant, 

TVPRA § 235(d)(2). 205 See, e.g., 8 C.F.R. § 274a.13(d) (application for employment authorization). 206 See, e.g., “Adjustment of the Immigration and Naturalization Benefit 

Application and Petition Fee Schedule,” 72 Fed. Reg. 29851, 29858-59 (May 

30, 2007) (4-month processing goal for Form I-485, Application to Register 

Permanent Residence or Adjust Status, and 5-month goal for Form N-400,

Application for Naturalization). 207 Specifically, USCIS set a 4-month processing time for Forms I-485, 

Application to Register Permanent Residence or Adjust Status; I-140, 

Petition for Immigrant Worker; and I-90, Application to Replace Permanent 

Resident Card. It also announced a processing goal of 5 months to adjudicate 

Form N-400, Application for Naturalization to completion. For all other 

immigration filings, USCIS committed to reducing processing times by 20 

percent. See “Adjustment of the Immigration and Naturalization Benefit 

Application and Petition Fee Schedule,” 72 Fed. Reg. 29851, 29858-59 (May 

30, 2007). 208 See American Competitiveness in the Twenty-First Century Act of 2000 

(AC21), Pub. L. 106-313, 114 Stat. 1251 (“It is the sense of Congress that the 

processing of an immigration benefit application should be completed not later 

than 180 days after the initial filing of the application....”). 

immigration benefit filings.209 Since 2010, the collection, 

analysis, and posting of processing times have been the 

function of USCIS’ Office of Performance and Quality 

(OPQ).210 USCIS Service Center Operations (SCOPs) 

and Field Operations Directorates (FOD) report actual 

completion data by form type to OPQ on a monthly basis.211

The processing times that USCIS posts publicly, however, 

are not a direct representation of the actual processing time 

for a given form in the month reported. As discussed in 

some length in the 2015 Annual Report, USCIS’ current 

methodology uses the number of cases pending in the 

responsible office against the monthly completion rate 

(number of cases completed in that location and product 

line) to arrive at its processing times.212 These cycle times 

are vetted with the responsible offices before being posted 

to remove statistical anomalies and ensure they accurately 

reflect the correct product line; this accounts for the lengthy 

time (typically 45 days) between the data capture and the 

date it is made public.213 Another reason for the delay is the 

removal from its calculation of all cases that are actively 

suspended (cases that have issued an RFE or a NOID).214

Response time can add weeks or months to a case’s 

processing time.

If the form’s cycle time is under or at the goal that has 

been set by the agency, the report will reflect that goal, in a 

monthly format, on the processing times page on the USCIS 

website (e.g., 3 months). If the cycle time is taking longer 

than the goal, the actual receipt date of the applications or 

petitions currently being processed in the office or service 

center is posted (e.g., November 13, 2015).215

If the monthly completion rate is not equal to or greater than 

the receipt rate, the calculation results in increased posted 

209 “We generally process cases in the order that we receive them. On this page 

you can find an estimate of how much time the office handling your case 

currently takes to process your type of application, petition, or request.” 

USCIS webpage, “USCIS Processing Time Information;” https://egov.uscis.

gov/cris/processTimesDisplayInit.do (accessed May 21, 2016). 210 DHS webpage, “Telecon Recap: Application Processing Times: A 

Conversation with USCIS Office of Performance and Quality” (Apr. 27, 

2011); https://www.dhs.gov/telecon-recap-application-processing-timesconversation-uscis-office-performance-and-quality (accessed May 21, 2016). 211 Ombudsman Teleconference, “Processing Times” (Apr. 27, 2016); https://

www.dhs.gov/uscis-processing-times-teleconference-recap (accessed June 17, 

2016); see also Telecon Recap: Application Processing Times: A Conversation 

with USCIS (Apr. 27, 2011), supra note 210. 212 Ombudsman’s Annual Report 2015, pp. 84-86; see also Processing Times, 

supra note 211. 213 Processing Times (Apr. 27, 2016), supra note 211. 214 Telecon Recap: Application Processing Times: A Conversation with USCIS 

Office of Performance and Quality, supra note 210. 215 Processing Times (Apr. 27, 2016), supra note 211. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 33

processing times. While the agency generally works cases 

on a first-in-first-out basis, customers should not assume 

an application will be or should have been completed 

by the reported date, regardless of whether USCIS posts 

processing time in months or as a specific date.216 Until 

updated processing times are posted the following month, 

applications received after the posted processing date are not 

considered outside of normal processing times, and USCIS 

will not entertain inquiries on those applications.217

Stakeholders have long expressed confusion over these 

calculations, particularly with reading processing times 

against processing goals, and the difficulties of comparing 

posted processing times that are not aligned with their own 

experiences. Few customers understand, for example, time 

expended responding to RFEs is not included in the cycle 

time calculations because USCIS is unable to accurately 

gauge proper calculations for those cases.218 Processing 

moves forward during the 75-day period while a given 

processing time is being collected, analyzed, posted, 

and used. As a result, the reported processing times have 

become little more than representative proxies bearing 

little resemblance to the petitions and applications that are 

actually being adjudicated.

Ongoing Concerns

Processing Goals and Backlogs. From FY 2010 through 

FY 2013, USCIS generally met, or missed by a short 

timeframe, goals in the key areas of naturalization and 

adjustment of status.219 However, in FY 2014 and FY 2015, 

the Ombudsman reported problems with USCIS’ ability to 

meet its processing time goals, especially as reflected in the 

increasing number of requests for case assistance involving 

adjudication delays.220 In FY 2015, the percentage of 

requests for case assistance received by the Ombudsman 

involving filings beyond posted processing times increased 

to 61 percent, up 3 percent from 2014, and spanned across 

most product lines.221 During the first two quarters of FY 

216 Id. 217 Id. 218 Id. 219 See, e.g., Ombudsman’s Annual Report 2013, p. 42; Ombudsman’s Annual 

Report 2011, p. 36; Ombudsman’s Annual Report 2010, p. 13. 220 Requests for case assistance involving filings beyond posted processing times 

accounted for 58 percent of the requests received at the Ombudsman’s Office 

in 2014, and 61 percent of requests received in 2015. 221 In FY 2015, the top ten applications inquired about in descending order were 

Forms I-821, I-765, I-485, I-130, N-400, I-526, I-539, I-589, I-751 and I-140. 

Further, these figures are slightly skewed downward, as the Ombudsman does 

not accept requests for case assistance until a filing is 60 days or more past the 

posted processing time for that form type and adjudication office.

2016, the Ombudsman received 2,965 requests for case 

assistance pending past posted processing times out of 

4,740, or a rate of almost 63 percent. These requests reflect 

a further decline in USCIS’ ability to meet many of its 

processing goals.

In 2015, the Ombudsman reported at length on the delays 

in adjudicating DACA related renewals, in particular 

applications for employment authorization emanating 

from approved applications, and the role the Ombudsman 

played in pointing out to USCIS the problems inherent in 

its reporting of processing times for DACA recipients.222

The Ombudsman also reported its observations during 

the last reporting period regarding seasonal delays in 

EAD processing times.223 In this reporting period, we 

have observed and raised with USCIS concerns regarding 

processing times of: Form I-539, Application to Change 

Status for nonimmigrant student populations at the VSC; 

Form I-821, Application for Temporary Protected Status, in 

which substantial delays beyond 6 months have occurred; 

H-1B extensions;224 Form I-765;225 and Form I-526, Petition 

by Immigrant Petition by Alien Entrepreneur, delays of 

which now exceed 16 months.226 The agency’s national 

average processing time for processing Form I-485 is at 6.9 

months, exceeding the goal of 4 months, and for N-400, it 

is beyond the 5-month processing goal at 5.7 months.227

Attempts to Deal with Processing Backlogs

In its recent Notice of Proposed Rulemaking (NPRM) to 

increase fees, the agency ack now l edged processing times 

have increased, resulting in backlogs that fail to meet its own 

222 Ombudsman’s Annual Report 2015, pp. 17-20. 223 Ombudsman’s Annual Report 2015, pp. 48-50. 224 The Ombudsman also hosted a teleconference with USCIS and DHS 

in February 2016 regarding issues related to these delays with respect 

to Department of Motor Vehicles benefits and their interaction with 

nonimmigrant extension delays. Ombudsman Teleconference, “Impact of 

USCIS Delays on U.S. Department of Motor Vehicles (DMV) Benefits” (Feb. 

25, 2016); https://www.dhs.gov/dmv-benefits-teleconference-recap (accessed 

June 2, 2016). 225 See infra “Recommendation Update: Employment Authorization Documents” 

in this Report. 226 See “USCIS Processing Time Information for the Immigrant Investor 

Program Office, Average Processing Times as of March 31, 2016” (updated 

May 12, 2016); https://egov.uscis.gov/cris/processingTimesDisplay.

do;jsessionid=abcD6qEZEPS0UeOuudTtv (accessed May 25, 2016). 227 N-400 and I-485 FY 2016 first quarter data taken from information provided 

by USCIS on Apr. 13, 2016 and May 12, 2016.
34 | ANNUAL REPORT TO CONGRESS JUNE 2016

goals.228 The backlogs stem in part from the elimination of 

the surcharge previously applied to applications and petitions 

to recover costs related to refugee and asylum adjudications. 

By replacing the surcharge on non-refugee applications and 

petitions, USCIS anticipates there will be sufficient funds to 

ensure adequate resources to meet earlier goals.229

The agency has begun taking steps to meet backlog 

challenges, such as issuing the recent email message to 

USCIS stakeholders and the interested public reacting to 

the backlog reports:

Current personnel resources do not align with the 

present caseload, but we are working to address 

the staffing shortages and workload issues that are 

causing the delays.... We continually review our 

workload capacity at each service center and, based 

on our findings, redistribute the work among the 

service centers. This type of planning allows us to 

maximize our resources and minimize any delays 

when work is transfer[r]ed.230

Impact of Processing Delays on USCIS Customers. The 

Ombudsman welcomes the agency’s acknowledgment 

of its processing times challenges, but the attempt to rein 

in backlogs cannot be employed quickly enough. The 

impacts of processing delays include: separation of family 

members, lost jobs, financial hardships, forced travel 

delays, and educational delays. Naturalization application 

delays stall hopes of voting in elections as well as the 

ability to petition for loved ones or to pursue certain job 

opportunities. Lengthy processing times also negatively 

impact businesses, where an employee’s start date is critical 

and reliable processing times needed to plan assignments 

months in advance. Current and prospective foreign national 

employees similarly rely on the accuracy and reliability of 

posted processing times to give ample notice, relocate, or 

begin work before an employment offer expires. To gain 

some level of certainty, business petitioners are increasingly 

using USCIS’ 15-day premium processing option, by paying 

the $1,225 additional fee, when it is available.231

228 “USCIS acknowledges that since it last adjusted fees in FY 2010, the agency 

has experienced elevated processing times compared to the goals established 

in FY 2007. These processing delays have contributed to case processing 

backlogs.” “U.S. Citizenship and Immigration Services Fee Schedule; 

Proposed Rule,” 81 Fed. Reg. 26903, 26910 (May 4, 2016). 229 Id. 230 USCIS email to stakeholders, “Processing Times” (Apr. 28, 2016). 231 The Ombudsman has not examined whether increased business use of 

premium processing inversely affects regular filing processing times as USCIS 

shifts adjudicators to meet its “Premium Processing” commitment. 

Recommendations

Over the last 3 reporting years, the Ombudsman has seen 

increases in requests for case assistance to address USCIS 

processing time delays. Customers continue to express their 

frustration with the increasingly lengthy processing delays, 

which is further exacerbated by the lack of transparency 

and unreliability of the posted processing times. The 

Ombudsman strongly believes that, as a fee-for-service 

agency, USCIS must develop and implement a process that 

accurately reflects the time it takes to process applications 

and petitions from receipt to completion. The Ombudsman 

recommends USCIS revamp processing times calculations 

to align with actual adjudications, which would assist the 

agency in assessing more realistic processing time goals and 

timely address failures to meet those goals. 

The Ombudsman urges USCIS to immediately address the 

problems preventing the agency from meeting the processing 

time goals promised in its 2007 final fee rule, goals it recently 

recommitted to meeting in the future.232 The significant 

increases in filing fees under the 2007 rule were justified, 

in some part, by promises to reduce processing times, 

presumably through the use of additional resources funded 

by the increased filing fees. Those promises have not always 

been met, primarily as a result of the significant resources 

USCIS has had to divert to the adjudication of humanitarian 

applications, especially asylum applications and credible 

fear determinations in expedited removal cases, which have 

depleted agency resources on a significant scale.233

USCIS has announced its exploration of and commitment 

to more accurate processing times based on actual, realtime data.234 More realistic processing times, including 

times that reflect those percentage of cases for which a 

longer processing time is anticipated (whether due to a 

broad impact, such as a surge of applications 

or a specific impact, such as an RFE), will provide 

stakeholders information more reflective of their actual 

experiences and enable them to better manage outcomes.

Equally important, USCIS adjudicators must be afforded 

adequate time to perform thorough file reviews, consistent 

232 U.S. Citizenship and Immigration Services Fee Schedule, 81 Fed. Reg. 

at 26904. 233 See supra “Asylum Backlogs and Continuing Assessment Problems” of this 

Report. 234 Processing Times (Apr. 27, 2016), supra note 211.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 35

with the agency’s “Quality in the Workplace” initiative.235

The agency should thoroughly assess and establish 

appropriate staffing levels, allowing for anticipated as 

well as current workloads, and set hiring plans to meet 

the demands placed on it. The possibility of realigning 

product lines should be examined, and the concept 

of center specialization should be reevaluated given 

current imbalances that exist between and among some 

decentralized operations nationwide. The current activities 

around workload transfers are an encouraging beginning of 

such efforts. With sufficient funding and staffing, USCIS 

can reduce its processing times, improve the quality of its 

adjudications, and overall strengthen the integrity of the 

programs it administers. 

The Challenges of Background 

Checks and Clearances on 

Case Adjudication

Responsible USCIS Offices: Field Operations, 

Service Center Operations, Fraud Detection & 

National Security, and Immigration Records and 

Identity Services Directorates

Background 

While background and security checks are essential 

features of immigration processing, many elements of the 

process are classified or otherwise cannot be disclosed, 

leading to stakeholder confusion, anxiety, and frustration. 

The variety of checks and agencies involved contribute 

to processing delays that can last years. As a result, there 

is a need for increased transparency and communication 

regarding the processing goals as USCIS and its partner 

agencies execute critical national security and program 

integrity objectives involved in the adjudication of 

immigration benefits applications.

During this reporting period, Congress and the public 

renewed their focus on USCIS’ security screening 

measures, which was largely in response to the terrorist 

attacks in Paris on November 13, and San Bernardino 

235 See DHS webpage, “Written testimony of USCIS for a Senate Committee on 

the Judiciary, Subcommittee on Immigration and The National Interest hearing 

titled ‘Oversight of U.S. Citizenship and Immigration Services: Ensuring 

Agency Priorities Comply with the Law’ (Mar. 3, 2015); https://www.dhs.gov/

news/2015/03/03/written-testimony-uscis-senate-judiciary-immigration-andnational-interest-hearing (accessed June 2, 2016).

on December 2, which focused on the visa waiver and 

fiancé(e) visa programs, the role of social media in security 

vetting, and the resettlement of Syrian refugees in the 

United States.236 Ensuring that background and security 

checks are thoroughly completed in a timely manner 

achieves both customer service and national security goals. 

The customer receives a timely decision, and the agency 

ensures that applicants already residing in the United 

States, or seeking to enter the country, are appropriately and 

fully vetted. 

Longer Periods of Review

When the Ombudsman receives confirmation from USCIS 

that a case is on hold for any type of background or security 

check, the Ombudsman tracks the case until a decision is 

issued by USCIS. 

By tracking requests for case assistance on long-term 

review at the agency, the Ombudsman is able to monitor 

individual case statuses as well as track larger policy issues. 

Additionally, the Ombudsman monitors cases on hold 

under terrorism-related inadmissibility grounds (TRIG) 

by tracking individual requests for case assistance and 

participating in quarterly USCIS stakeholder meetings.

The Basics of Security Checks

USCIS uses a variety of internal and external checks to 

ensure the integrity of the immigration system.237 Limited 

information is available to an applicant or petitioner 

regarding the details of USCIS security checks. When an 

individual learns that an immigration application is on hold 

for what is often termed “background checks,” the only 

option is to wait for a resolution from USCIS. Prolonged 

processing delays can lead to serious consequences for 

legitimate applicants, including loss of employment or 

236 “The Syrian Refugee Crisis and Its Impact on the Security of the U.S. Refugee 

Admissions Program” before the Subcommittee on Immigration and Border 

Security of the U.S. House Judiciary Committee, 114th Congress, 1st Sess. 

(2015); https://judiciary.house.gov/hearing/hearing-the-syrian-refugee-crisisand-its-impact-on-the-security-of-the-u-s-refugee-admissions-program/

(accessed Apr. 14, 2016); “Oversight of the United States Citizenship and 

Immigration Services” before the Subcommittee on Immigration and Border 

Subcommittee of the U.S. House Judiciary Committee, 114th Congress, 1st 

Sess. (2015); https://judiciary.house.gov/hearing/oversight-of-the-unitedstates-citizenship-and-immigration-services/ (accessed Apr. 14, 2016). 237 The scope of this article references background checks (checks via name and 

identity to address admissibility issues) and security checks (identification of 

any national security concerns) of individual applicants and petitioners filing 

for benefits with USCIS. It is not intended to be a comprehensive review of 

the separate security screening process for refugees, nor a comprehensive 

review; certain national security issues are outside the purview of the 

Ombudsman. 
36 | ANNUAL REPORT TO CONGRESS JUNE 2016

other income, and inability to secure or renew drivers’ 

licenses, as well as family separation. 

By statute and regulation, USCIS conducts certain 

verifications on all applications and petitions to confirm 

eligibility, including admissibility, of the individual 

applicants or petitioners through interactions with agencies 

possessing relevant information.238 While background 

checks are made on all filings, there appears to be a certain 

amount of discretion exercised with regard to additional 

checks made for security reasons. 

From USCIS’ perspective, there are two tracks for 

background and security checks: internal and external. 

FDNS and the SCOPS Background Check Unit (BCU) 

oversee internal checks, which include the Automated 

Biometric Identification System (IDENT) fingerprint 

check and TECS Name Check.239 If checks implicate 

national security concerns, USCIS conducts an additional 

review through its Controlled Application Review and 

Resolution Process (CARRP).240 Meanwhile, agencies other 

than USCIS, such as U.S. Department of Justice (DOJ), 

CBP, ICE, and FBI, all perform “external” checks and 

investigations for certain applications.241

In 2010, FDNS was elevated to a Directorate within USCIS 

to promote FDNS’ mission throughout the agency.242 FDNS 

is the point of contact within USCIS for cases involving 

suspected fraud, national security, or public safety 

concerns,243 but, it does not perform background checks.244

The FDNS Data System (FDNS-DS) is the central case 

management system used by FDNS to recognize fraud and 

238 USCIS relies upon authority contained in 8 U.S.C. § 1101 et seq. as requiring 

background checks to be conducted for certain immigration benefits. 239 DHS Privacy Impact Assessment, “Immigration Benefits Background Check 

Systems” (Nov. 5, 2010) pp. 3, 4; https://www.dhs.gov/xlibrary/assets/privacy/

privacy_pia_uscis_ibbcs.pdf (accessed Mar. 1, 2016). 240 USCIS Fact Sheet, “Refugee Security Screening” (Dec. 3, 2015); https://

www.uscis.gov/sites/default/files/USCIS/Refugee,%20Asylum,%20and%20

Int’l%20Ops/Refugee_Security_Screening_Fact_Sheet.pdf (accessed Mar. 1, 

2016). 241 See DHS Privacy Impact Assessment, “Immigration Benefits Background 

Check Systems” (Nov. 5, 2010); https://www.dhs.gov/xlibrary/assets/privacy/

privacy_pia_uscis_ibbcs.pdf (accessed Mar. 1, 2016). 242 USCIS Webpage, “Fraud Detection and National Security Directorate” (Nov. 

18, 2011); https://www.uscis.gov/about-us/directorates-and-program-offices/

fraud-detection-and-national-security/fraud-detection-and-national-securitydirectorate (accessed Mar. 1, 2016). 243 DHS Privacy Impact Assessment, “Fraud Detection and National Security 

Directorate” (Dec. 16, 2014) p. 2; https://www.dhs.gov/sites/default/files/

publications/privacy-pia-uscis-fdns-september2015.pdf (accessed Mar. 1, 

2016). 244 Information provided by USCIS (Apr. 14 2016).

track potential problems.245 In addition to its work within 

USCIS, FDNS is also the liaison between USCIS and the 

intelligence community and law enforcement.246

FDNS’ use of social media as part of the security vetting 

process came under scrutiny during the reporting period. 

The agency’s most recent publicly available guidance 

states that USCIS “is finalizing its policy for use of Social 

Media,” clarifying that fraud, national security, or public 

safety determinations are not to be made solely based on 

publicly-available information due to its inherent lack of 

data integrity.”247 Instead, FDNS states it uses social 

media as a means to verify information already provided by 

the applicant or petitioner.248 In cases where FDNS 

finds derogatory information, USCIS must give the 

applicant or petitioner an opportunity to explain any 

conflicting information.249

The BCU administers background check services for 

USCIS Service Centers. Publicly available information on 

the BCU is limited. Its work focuses on the oversight of 

performance of background (name and fingerprint) checks 

on applicants and beneficiaries. SCOPS performs TECS 

checks on the primary name and date of birth, including 

on all aliases and name and date of birth variations, and 

positive results, or “hits,” are forwarded to the BCU 

for resolution.250 

USCIS administers CARRP as a supplementary security 

screening for cases that involve national security concerns. 

A national security concern is defined as an “articulable link 

to prior, current, or planned involvement in, or association 

with, an activity, individual, or organization described in 

sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and 

(B) of the INA” (terrorist activity; espionage; sabotage; 

and illegal transfer of goods, technology, or sensitive 

information).251 As with other security processes, there is 

limited publically available information regarding CARRP.

245 DHS Privacy Impact Assessment, “Fraud Detection and National Security 

Data System (FDNS-DS)” (Jul. 29, 2008) p. 1; https://www.dhs.gov/sites/

default/files/publications/privacy-pia-uscis-fdnsds-july2008.pdf (accessed 

Mar. 1, 2016). 246 DHS Privacy Impact Assessment, “FDNS,” supra, note 243. 247 Id. at 5-6, 15. 248 Id. at 14. 249 Id. 5-6 Beneficiaries of petitions are not considered to have standing and are 

not given an opportunity to address allegations. See infra “Regulatory and 

Policy Developments in Employment-Based Petitions” in this Report. 250 Information provided by USCIS (Apr. 14, 2016). 251 CARRP Adjudicator Training PowerPoint, ADOTC (Mar. 5, 2013) p. 19; 

https://www.aclusocal.org/wp-content/uploads/2014/07/CARRP-AdjudicatorTraining-ADOTC-v-1-Mar-5-2013.pdf (document obtained by the American 

Civil Liberties Union through Freedom of Information Act request).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 37

In addition to the internal processes described above, 

USCIS also collaborates with other government agencies to 

perform additional external vetting. The FBI performs two 

checks for almost all USCIS forms—Fingerprint Checks 

and Name Checks. The FBI Fingerprint Check involves 

an automated search of a national fingerprint and criminal 

history system maintained by the FBI252 and are performed 

on all applicants 14 years and older who seek to remain 

in the United States for more than 1 year.253 FBI Name 

Checks involve a search of “main files” for instances where 

the applicant was the subject of an FBI investigation, as 

well as a search of “reference files” where the individual’s 

name is mentioned but is not the main subject of the 

investigation.254 Figure 3.1 identifies the applications that 

require FBI Name Checks for applicants over 14 years old.

According to the FBI, the length of time to process a name 

check varies.255 Its processing goal is to complete a majority 

of checks within 30 days, with the remainder completed 

within 90 days.256 FBI is returning name check results in 30 

days 93 percent of the time.257 The average response time 

is difficult for USCIS to track because the name checks 

are submitted several different ways from more than one 

national system.258 FBI’s National Name Check Program 

(NNCP) receives over 65,000 requests for name checks 

each week, with about half of all inquiries coming from 

USCIS.259 FBI expedites only a limited number of name 

checks. Further, expedite requests can only be initiated by 

the requesting agency, not by an individual.260

According to USCIS, resolving background and security 

checks “is time-consuming and labor-intensive; some 

cases legitimately take months or even several years to 

resolve.”261 Vetting can delay case processing for numerous 

reasons, including error by the applicant, petitioner, or 

252 DHS Privacy Impact Assessment, “Immigration Benefits Background Check 

Systems” (Nov. 5, 2010) p. 2; https://www.dhs.gov/xlibrary/assets/privacy/

privacy_pia_uscis_ibbcs.pdf (accessed Mar. 1, 2016) 253 Id. 254 Id. at 3. 255 FBI Webpage, “Name Checks FAQ;” https://www.fbi.gov/stats-services/

name-checks/name-checks-faqs (accessed Mar. 1, 2016). 256 The Interagency Agreement between USCIS and the FBI states, “The FBI 

will endeavor to process 90 percent or more of name check requests submitted 

to the FBI within 30 days of receipt, with the remaining requests completed 

within 90 days of receipt.” Information provided by USCIS (Apr. 14, 2016). 257 Information provided by USCIS (Apr. 14, 2016). 258 Id. 259 Name Checks FAQ, supra note 255. 260 Id. 261 USCIS Fact Sheet, “Immigration Security Checks—How and Why the 

Process Works” (Apr. 25, 2006); https://www.uscis.gov/sites/default/files/files/

pressrelease/security_checks_42506.pdf (accessed Mar. 1, 2016). 

agency; antiquated and insufficient technology; inadequate 

resources; and legitimate investigations. For example, 

in 2012, DHS Office of Inspector General (OIG) found 

that aliases and spelling variations of names complicated 

USCIS background checks.262 In that same report, OIG 

noted that USCIS relies on “cumbersome and outdated” 

systems to run security checks, causing officers to “conduct 

labor-intensive, system-by-system checks to verify or 

eliminate each possible match to terrorist watch lists and 

other derogatory information.”263 In a 2014 report on 

USCIS Information Technology, OIG found that

... [USCIS] systems do not fully provide desired 

functionality, and system reliability is also a 

challenge .... As a result, the processing of benefits 

is delayed, and USCIS customers may have to 

wait longer for a decision on their applications 

for benefits. In addition, staff members are not 

always sure which systems to use or which systems 

are available to perform specific job functions ... 

[USCIS] staff may not be accessing information 

that is available to make informed decisions on 

adjudication of benefits, and staff’s ability to carry 

out USCIS’ mission may be hampered.264

USCIS has stated its Transformation efforts will improve 

many of these issues by consolidating data systems and 

alleviating inefficiencies caused by officer review of paper 

files.265 However, as discussed elsewhere in this Report, 

Transformation implementation has been problematic and 

continues to exceed timelines for implementation.266

Individuals experiencing prolonged background checks can 

request information relating to their cases from USCIS by 

making a FOIA or Privacy Act Request.267 Some or all of 

the information requested may be exempt from disclosure 

262 DHS OIG, “The Effects of USCIS Adjudication Procedures and Policies on 

Fraud Detection by Immigration Services Officers,” OIG-12-24 (Jan. 2012) 

p. 8; https://www.oig.dhs.gov/assets/Mgmt/OIG_12-24_Jan12.pdf (accessed 

Mar. 1, 2016). 263 Id. at 9. 264 DHS OIG, “U.S. Citizenship and Immigration Services Information 

Technology Management Progress and Challenges,” OIG-14-112 (July 2014) 

p. 1; https://www.oig.dhs.gov/assets/Mgmt/2014/OIG_14-112_Jul14.pdf

(accessed May 23, 2016). 265 DHS OIG, “The Effects of USCIS Adjudication Procedures and Policies on 

Fraud Detection by Immigration Services Officers,” supra note 262, at 9. 266 See infra “Transformation Update: E-Filing for Immigration Benefits 

Expands” in this Report. 267 See 6 C.F.R. § 5.21 for request process procedures. See DHS Privacy Impact 

Assessment, Immigration Benefits Background Check Systems, supra note 

239, at 20. 
38 | ANNUAL REPORT TO CONGRESS JUNE 2016

if it relates to law enforcement sensitive information.268

Nonetheless, if USCIS has disclosed information that is not 

accurate, the individual may notify USCIS by calling its 

National Customer Service Center (NCSC) or by correcting 

the information in an in-person interview with a USCIS 

officer pursuant to benefit adjudication,269 and USCIS will 

update FDNS-DS records.270 However, due to the sensitive 

nature of background and security vetting, it is likely 

that most customers will be unaware of the presence of 

incorrect or derogatory information, making it likely that 

few stakeholders will be able to avail themselves of this 

correction process. 

Ongoing Plan of Action

USCIS officers engage daily in the complex balancing 

act of evaluating eligibility while vetting applicants for 

fraud and security concerns. At the same time, officers 

in a service agency are expected to adhere to processing 

goals and provide good customer service. Through its 

extended review casework, the Ombudsman will continue 

to track the impact of security-related delays on the USCIS 

268 Id. 269 Id. at 21. 270 DHS Privacy Impact Assessment, “Fraud Detection and National Security 

Data System (FDNS-DS)” (July 29, 2008) at 13; https://www.dhs.gov/sites/

default/files/publications/privacy-pia-uscis-fdnsds-july2008.pdf (accessed

Mar. 1, 2016).

customer and on the agency’s ability to timely achieve 

its security vetting objectives. For bona fide applicants, 

extended delays based on background and security vetting 

can cause significant distress, family separation, and 

other hardships. Meanwhile, adjustment and other cases 

involving applicants who may pose actual security threats 

should be prioritized when those individuals are already 

living in the United States during the pendency of 

their cases. 

The Ombudsman therefore recommends USCIS strengthen 

its internal procedures to more closely monitor and 

follow up on processing of background and security 

checks, in particular pending FBI name checks and ICE 

investigations. Each USCIS field office and service center 

has its own guidance for reviewing and tracking the 

status of pending background checks.271 Without a unified 

agency monitoring process, legitimate cases can become 

backlogged without recourse, while security vetting is 

delayed. More significantly, in instances where cases will 

remain on review for indefinite periods, USCIS should 

give the applicant or petitioner notice and an opportunity 

to pursue alternative options, including withdrawing the 

application. For example, refugees can potentially pursue 

resettlement with third countries rather than continue 

to wait for the completion of their background checks 

271 Information provided by USCIS (Apr. 14, 2016).

Figure 3.1: USCIS Adjudications Requiring FBI Name Checks

Form

Individual Requiring FBI Name Check (designated with “x”)

Special Instructions

Applicant Petitioner Beneficiary Derivatives Household 

(HH) Members

I-192 X

I-485 X

FBI Name Check not required on an individual who is more than 80 years and one 

day old.

I-589 X X

I-590 X X X

For certain refugee applicants, FBI and CIA 

name checks are conducted through the 

SAO process.

I-601 X Except when filed overseas

I-601A X Except when filed overseas 

I-687 X

I-698 X

I-730 X When the beneficiary is in the United States

I-881 X

N-400 X

Source: Information provided by USCIS (Apr. 14, 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 39

with USCIS. All U.S. agencies involved in background 

and security vetting should communicate clearly about 

processing goals and timelines regarding this critical piece 

of the U.S. immigration system. 

Ensuring the Delivery of 

Secure Documents

Responsible USCIS Offices: Office of Intake and 

Document Production; and the Field Operations, 

Service Center Operations, and Customer Service 

and Public Engagement Directorates

Every year, USCIS sends millions of secure documents272

to applicants and their legal representatives through the 

U.S. Postal Service (USPS), including EADs, Travel 

Documents, and Permanent Resident Cards. Applicants use 

these documents to verify work and travel authorization, 

as well as for identity and proof of lawful status in the 

United States. 

Background

USCIS mails secure documents to customers via USPS 

Priority Mail with Delivery Confirmation.273 Customers 

are generally not notified if or when delivery of a secure 

document has been attempted, and neither USCIS nor 

USPS notifies the customer of the anticipated delivery 

day. It can take up to 30 days for the applicant or legal 

representative to receive a secure document.274As a result, 

a customer may not learn about a delivery problem until 

weeks after it has occurred.

Customers and their representatives may contact USCIS’ 

NCSC to obtain the tracking number for their document 

and monitor delivery.275 Alternatively, applicants and 

their representatives can create an account through 

272 USCIS Webpage, “Number of Service-wide Forms By Fiscal Year To-Date, 

Quarter, and Form Status, 2015” (Dec. 4, 2015); https://www.uscis.gov/sites/

default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20

Forms%20Data/All%20Form%20Types/all_forms_performancedata_fy2015_

qtr4.pdf (accessed May 20, 2016). 273 USPS Domestic Mail Manual, “Section 503: Extra and Additional Services” 

(April 10, 2016); http://pe.usps.com/text/dmm300/503.htm#1233442

(accessed May 3, 2016). 274 Information provided through requests for case assistance. 275 USCIS Webpage, “USCIS Improves Delivery of Immigration Documents 

through Secure Mail Initiative” (May 2, 2011); https://www.uscis.gov/news/

uscis-improves-delivery-immigration-documents-through-secure-mailinitiative (accessed May 20, 2016).

USCIS’ website to receive updated approval and mailing 

information through email or text message.276

USCIS instructs customers who learn their documents are 

missing to visit their local USPS office to seek information 

about the delivery of their documents. USPS can track 

the exact address of delivery using the tracking number, 

though the tracking tool available to the public on the 

USPS website only shows delivery to the city, state, and zip 

code—not to a particular address.277 USPS may also contact 

the individual letter carrier for delivery confirmation; in 

some cases, contacting the carrier has led to locating a 

missing document.278

Some mailing issues are the result of customers failing 

to timely notify USCIS of their change of address. Other 

reasons are outside the customer’s control. USCIS may err 

in entering the customer’s address or may not use the most 

recent address provided by the customer. USPS may not 

deliver the document at all, or may inadvertently mis-deliver 

it. Four of the top ten categories of customer service requests 

received by USCIS for the last four fiscal years were related 

to non-delivery of secure documents and other notices.279

If USPS has returned the document to USCIS, the agency 

will attempt to re-send it to the customer. When the secure 

document is not returned to USCIS, the customer must file 

a new application with the filing fee, unless they can show 

that USCIS or USPS is responsible for the delivery issue.

Ongoing Concerns

USCIS facilities process thousands of pieces of mail per 

day and millions per year,280 the majority of which are 

delivered without error.281 For those who do not timely 

receive their documents, or simply never receive them, 

the difficulties they encounter working to obtain their 

documents are exacerbated by the problems encountered as 

a result of not having them. Severe consequences include 

job loss, inability to attend a family member’s wedding or 

funeral in another country, and difficulties proving lawful 

immigration status. Applicants pay thousands of dollars to 

file additional applications because they are in desperate 

need of their secure documents. 

276 USCIS Webpage, “Sign up for myUSCIS;” https://egov.uscis.gov/casestatus/

disclaimer.do (accessed May 23, 2016). 277 In one recent request for case assistance, an applicant was able to reach out to 

USPS directly to obtain exact location delivery and confirm that his document 

was delivered to the wrong floor in a large apartment building. 278 Information provided by USCIS (Mar. 2, 2016). 279 Information provided by USCIS (Apr. 14, 2016). 280 Number of Service-wide Forms By Fiscal Year To-Date, Quarter, and Form 

Status, 2015, supra note 272. 281 Information provided by USCIS (Jan. 13, 2016 and Jan. 14, 2016).
40 | ANNUAL REPORT TO CONGRESS JUNE 2016

There are many causes of mail delivery failure that can 

be attributed to USCIS and USPS. Some stem from the 

lack of system compatibility across the USCIS enterprise, 

which can cause USCIS to mail secure documents to 

former or incorrect addresses.282 A slight error in data 

entry, such as an incorrect apartment or floor number, can 

lead to non-delivery and “frustration,” both “financially 

and emotionally” for customers.283 USPS may deliver a 

correctly labelled document to an incorrect address. The 

Ombudsman has also encountered situations where USPS 

indicates a secure document was returned to USCIS, but 

USCIS incorrectly reports it as delivered to the customer.284

Sometimes USPS can neither confirm nor deny delivery; 

in one case, USPS stated, “Unfortunately, we cannot 

determine exactly what P.O. Box this package was 

delivered to or what happened to it.”285

According to USCIS, if USPS does not return the secure 

document to USCIS, and no change of address has been 

submitted, USCIS will consider the secure document 

properly delivered.286 To obtain a replacement document, 

the applicant must refile the application and again pay the 

fees.287 Applicants avoid paying the fee a second time if 

they can demonstrate USPS either delivered the document 

to an incorrect address or did not deliver the document at 

all.288 Applicants and legal representatives can also show 

they notified USCIS of their change of address prior to 

the approval of the application or prior to card production 

to avoid having to pay additional filing fees.289 USCIS 

informed the Ombudsman that it updates its databases 

within 5 days of receiving a change of address notification.290

Applicants have difficulty showing incorrect or nondelivery or return to USCIS because tracking numbers 

provided by USPS are sometimes invalid or nonexistent.291 Further adding to the frustration, mail rooms 

and lockbox facilities have rejected, often multiple times, 

applications with sufficient evidence showing re-payment 

of fees is not required. 

While it is understandable USCIS seeks to closely control 

282 Information provided by USCIS (Mar. 2, 2016). See also information provided 

through request for case assistance. 283 Information provided through request for case assistance. 284 Id. 285 Id. 286 Information provided through requests for case assistance; see also 

information provided by USCIS (Apr. 18, 2016). 287 Id. 288 Id. 289 Information provided by USCIS (Mar. 2, 2016). 290 Id. 291 Information provided through request for case assistance.

the issuance of secure documents to reduce the potential for 

fraud, requiring the applicant to file a new application and 

repay the fees when USCIS or USPS caused delivery issues 

is inherently unfair. This onerous and expensive process 

causes additional frustration for applicants. 

When the customer files a new application with the full 

fee, USCIS apportions part of the funds to cover the cost 

of biometrics. According to the agency, this fee cannot be 

separated out even when biometrics taken in connection with 

the prior application have not yet expired and do not need to 

be taken again. USCIS may or may not generate a biometrics 

appointment notice if the prior biometrics are still valid.292

Ongoing Plan of Action 

The Ombudsman has previously encouraged USCIS to 

use prepaid couriers or certified mail to track delivery of 

secure documents, increasing security and certainty in the 

process.293 Sending secure documents to applicants and their 

legal representatives through certified mail, with a signature 

confirmation or through a commercial courier that can more 

accurately track delivery, may come at an additional cost. 

However, applicants may be increasingly amenable to the 

costs associated with a more transparent mechanism for 

document delivery, and should be afforded that choice.

By the end of 2016, USCIS expects to begin a “Hold 

for Pickup” pilot program294 for permanent resident 

cards issued after approval of Form I-90, Application 

to Replace Permanent Resident Card. USCIS will send 

emails notifying participating customers their cards are 

available for pickup at a local USPS office. Applicants or 

representatives will have 5 days to pick up the document 

from USPS. If the document is not collected by the fifth 

day, USCIS will send a reminder postcard. After the 

fourteenth day, if the document is still not claimed, USPS 

will return it to the issuing card production facility. When 

the applicant or representative learns (from Customer 

Service or other USCIS case status updates) the document 

has been returned to USCIS, they may request it be resent 

to the post office or to an updated address.

The Ombudsman is pleased USCIS is working closely 

with USPS to test improved protocols for delivering secure 

documents, and recommends USCIS be more proactive in 

notifying customers when secure documents are returned. 

The responsibility should be on the agency to deliver the 

292 Information provided by USCIS (Apr. 28, 2016). 293 Ombudsman’s Annual Report 2015, p. 83. 294 Information provided by USCIS (Mar. 2, 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 41

benefit and document for which the customer paid. In 

addition, the Ombudsman recommends USCIS separate 

biometrics fees from application fees where possible, to 

save the customer the additional time and money, as well 

as to preserve agency resources. The Ombudsman will 

continue to monitor and keep USCIS aware of ongoing 

delivery issues and looks forward to seeing progress as a 

result of the “Hold for Pickup” pilot.

Transformation Update: 

E-Filing for Immigration 

Benefits Expands

Responsible USCIS Office: Office of 

Transformation Coordination

Nearly 900,000 customers295 filed and tracked USCIS 

benefits online using the agency’s emerging digital 

platform that facilitates e-filing and enhanced case-status 

monitoring. The majority of e-filings were processed timely 

and accurately by USCIS, but stakeholders notified the 

Ombudsman of challenges and frustration with locating 

or obtaining processing times, locating up-to-date filing 

information, and timeliness of customer service. Of greater 

concern is the release in March 2016 of a major audit 

report by DHS’s OIG, critiquing the “deeply troubled” 

Transformation program and noting USCIS has resisted 

“independent oversight” and “minimized the shortcomings 

of the program.”296

Transformation is USCIS’ multi-year effort to digitize its 

paper-based filing and adjudication systems into a single 

electronic environment.297 Out of more than 90 form 

types and activities associated with them, only two can 

currently be e-filed. One is the Form I-90, Application to 

Replace Permanent Resident Card, and the other is the 

295 Information provided by USCIS (Apr. 14, 2016). According to USCIS, this 

number is comprised of 588,454 payment of the immigrant visa fee and 

291,099 e-filings of Form I-90 Application to Replace Permanent Resident 

Card, from April 2015 through February 2016. 296 DHS OIG, “USCIS Automation of Immigration Benefits Processing Remains 

Ineffective,” OIG-16-48, Memorandum for the USCIS Director from the 

Inspector General (Mar. 9, 2016); https://www.oig.dhs.gov/assets/Mgmt/2016/

OIG-16-48-Mar16.pdf (accessed May 4, 2016). 297 Slated to conclude in 2013, the initial e-filing system was outdated by 2014 and 

shut down in 2015. (For more information, see Ombudsman Annual Report 

2015, p. 86.) New cloud-based architecture has been implemented, which 

has both expanded the capabilities of Transformation services and storage 

capabilities and further delayed the timeline for completion into late 2019. 

payment of the Immigrant Visa Fee.298 As of the time this 

Report is being finalized, USCIS has begun entering data 

provided in select paper-filed forms and adjudicating them 

electronically, including Form I-821D, Consideration for 

Deferred Action for Childhood Arrivals, and the N-400, 

Application for Naturalization.299

Customer participation in e-filing initiatives has grown 

this reporting period, with the e-filings for the Form I-90 

totalling 291,099, nearly as many as the 351,156 paper-based 

filings.300 The agency finally implemented Ombudsman 

and stakeholder suggestions to allow third parties to pay 

the Immigrant Visa Fee, thereby enhancing the usability for 

stakeholders. Citizenship and certain filings for TPS and 

Adjustment of Status are slated to be offered later in 2016. 

Full implementation of the N-400 was expected earlier this 

year, but has been delayed.301

Ongoing Concerns 

Despite e-filing progress, the OIG Report notes adjudicators 

“struggled” with the new technology, which is “missing 

298 USCIS Webpage, “File Online” (Feb. 23, 2016); https://www.uscis.gov/fileonline (accessed May 17, 2016). 299 Information provided by USCIS (Feb. 11, 2016). 300 Information provided by USCIS (Apr. 14, 2016). 301 Id.

Request for Case Assistance: Mailing Issue

A customer contacted the Ombudsman for assistance 

obtaining an EAD mailed out by USCIS 7 months earlier. 

He reported being unemployed for months as a result 

of not receiving his card. The Ombudsman determined 

USCIS mailed the card to the applicant’s previous 

address, despite the fact that the applicant had timely 

and successfully submitted his change of address 

information to USCIS. Though USCIS acknowledged its 

error, it advised the Ombudsman to instruct the applicant 

to refile his application with a fee waiver request. The 

fee waiver process further extended the receipting and 

re-adjudication process. Because the mailing error was 

attributable to USCIS, the Ombudsman challenged 

the agency’s response. The Ombudsman’s actions 

resulted in the application being refiled and adjudicated 

expeditiously. The customer was issued a 2-year EAD and 

was able to return to work. 
42 | ANNUAL REPORT TO CONGRESS JUNE 2016

critical functionality.”302 The Ombudsman continues to 

be concerned about development delays and the impact 

they have on the agency’s effectiveness. The OIG found 

USCIS’ shift to cloud-based system architecture failed to 

include “stakeholder involvement, performance metrics, 

system testing, or user support needed for [e-filing] to be 

effective.”303 Since 2005 there have been six audits on the 

information technology efforts, demonstrating continuing 

concerns with the effectiveness of the program:

We undertook this audit to answer a relatively 

simple question: after 11 years and considerable 

expense, what has been the outcome—right 

now—of USCIS’ efforts to automate benefits 

processing? We focused on benefits processing 

automation progress and performance outcomes. 

The answer, unfortunately, is that at the time of 

our field work, which ended in July 2015, little 

progress had been made.304

Although USCIS established a Help Desk for customers 

submitting e-filings,305 stakeholders continue to express 

concern about the lack of accuracy with regard to e-filing 

processing times and the agency’s inability to timely 

resolve issues that arise.306

During the reporting period, more than 500 customers 

reached out to the Ombudsman with e-filing concerns.307

Customers were unable to resolve e-filing errors and 

experienced delays or non-delivery of permanent resident 

cards after paying the Immigrant Visa Fee electronically.308

USCIS’ NCSC referred some to the Ombudsman because 

their repeated SRMT requests remained unresolved. Others 

contend they were referred to the Ombudsman without first 

being referred to the e-filing Help Desk. The majority of 

customers seeking case assistance from the Ombudsman did 

not indicate they were aware of or had previously accessed 

302 USCIS Automation of Immigration Benefits Processing Remains Ineffective, 

supra note 296, at 11. Adjudicators stated to the OIG that they were unable “to 

undo data entry errors or enter comments once a case is processed,” that they 

deemed it efficient only for cases that are “straightforward,” but should a case 

need additional checks or review, such “efficiencies of electronic processing 

were lost.” 303 Id. at 8. 304 Id. 305 See USCIS Webpage, “Help and Customer Support for Filing Online;” https://

www.uscis.gov/uscis-elis/uscis-elis-help-and-customer-support/help-andcustomer-support-filing-online (accessed May 4, 2016). 306 USCIS Automation of Immigration Benefits Processing Remains Ineffective, 

supra note 296, at 33. 307 Information provided through requests for case assistance. 308 Id.

USCIS’ e-filing Help Desk.309 The Ombudsman previously 

observed the e-filing Help Desk’s access deficiencies and 

noticed USCIS’ website has undergone a number of recent 

revisions to improve visibility and accessibility of the Help 

Desk’s “Online Help Form.”310

The OIG report noted that both internal and external users 

had limited opportunities to provide input. 311 Stakeholders 

were disappointed by the elimination of e-filing for Form 

I-526, Immigrant Petition by Alien Entrepreneur and 

Form I-539, Application to Extend/Change Nonimmigrant 

Status for change of status.312 However, during an 

Ombudsman’s teleconference on Transformation held 

January 2016, practitioners using e-filing noted recent 

efforts have streamlined access to case information and 

processing features.313

Recommendation 

The Ombudsman recommends USCIS improve its 

customer service, including increasing customer awareness 

of the e-filing Help Desk and its internal coordination 

with the NCSC and field offices to timely resolve expedite 

requests. The OIG was unequivocal regarding the need for 

increased and more effective communication with external 

and internal stakeholders on Transformation, as well as 

improved stakeholder involvement throughout the entire 

cycle of system development.314 Input at all stages from 

users of the program—external and internal—is essential 

to ensuring system effectiveness. USCIS needs to examine 

ways to increase responsiveness to user feedback, and to 

allow for more external user involvement. The Ombudsman 

recommends USCIS consult other governmental agencies, 

such as the U.S. Internal Revenue Service, that manage 

robust e-filing programs, to identify ways to allow for 

broader user feedback and interaction with a wide range of 

interested stakeholders. 

309 USCIS e-filing Help Desk worked on 55,233 requests during FY 2016. When 

those matters are not resolved or when an expedite is needed, the agency has 

stated that customers must access the NCSC, not the Help Desk. Information 

provided by USCIS (Apr. 14, 2016). 310 See USCIS Webpage, “Help and Customer Support Filing Online” (Apr, 

18, 2016); https://www.uscis.gov/file-online/uscis-elis-help-and-customersupport/help-and-customer-support-filing-online (accessed May 17, 2016). 311 USCIS Automation of Immigration Benefits Processing Remains Ineffective, 

supra note 296, at 17-18. The lack of technical support was specifically 

referenced by the OIG in its report; note was made of the use of help desk 

tickets to find and correct deficiencies for all users. 312 Information provided to the Ombudsman (Aug. 27, 2015). 313 Ombudsman teleconference, “Transformation of USCIS Systems,” Jan. 28, 

2016; https://www.dhs.gov/transformation_USCIS_systems_teleconf_recap 

(accessed Jun. 2, 2016). 314 See USCIS Automation of Immigration Benefits Processing Remains 

Ineffective, supra note 296, at 16-48.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 43

Recommendation Update: 

Consular Returns

Responsible USCIS Office: Service Center 

Operations Directorate

Background

Stakeholders whose approved petitions are returned to 

USCIS by DOS experience uncertainty and ongoing 

challenges due to resource limitations, poor interagency 

communication, and antiquated file transmission between 

USCIS and DOS. USCIS is inconsistent in its procedures 

and prioritization of consular returns, causing concern and 

confusion among stakeholders. 

If during review of the visa application and the visa 

interview, DOS discovers material derogatory information 

or comes to believe the petition was approved in error, it 

will refuse to issue the visa and return the file to USCIS 

with further action requested.315 DHS has the sole statutory 

authority to approve or revoke immigrant visa petitions.316

Consulates return petitions to USCIS based on statutory 

ineligibility, fraud, missing or incorrect information, 

withdrawal of the petition, or death of the petitioner or 

qualifying relative.317 

When a consulate returns a petition to USCIS via the 

NVC or the Kentucky Consular Center (KCC), the packet 

includes a cover sheet, memoranda of consular interview(s), 

relevant translations, and a memorandum drafted by the 

315 Ombudsman Teleconference, “Consular Returns: A Conversation with the 

Department of State and USCIS” (Oct. 28, 2015); https://www.dhs.gov/topic/

consular-returns-teleconference-recap (accessed Apr. 29, 2016). 316 See INA §§ 204(b), 205; 8 C.F.R. §§ 204, 205. 317 Consular Returns: A Conversation with the Department of State and USCIS, 

supra note 315. (Oct. 28, 2015); https://www.dhs.gov/topic/consular-returnsteleconference-recap (accessed Apr. 29, 2016). A family-sponsored immigrant 

visa petition may be automatically revoked if the petition is withdrawn or 

the petitioner or beneficiary dies; upon legal termination of the marriage 

upon which the petition was based; upon the marriage of a second preference 

unmarried son or daughter; or upon the termination of U.S. status of a legal 

permanent resident petitioner. 8 C.F.R. § 205.1(a)(3)(i)-(ii). An employmentbased immigrant visa petition may be automatically revoked if the labor 

certification is invalidated, if the petitioner or beneficiary dies, if the petition 

is withdrawn, or if the petitioner goes out of business. 8 C.F.R. § 205.1(a)

(3)(iii). Automatic revocation may also occur due to failure to apply for an 

immigrant visa or adjustment of status within 1 year of receiving notice that 

a visa is available. INA § 203(g). Finally, USCIS may revoke an approved 

immigrant visa petition, upon notice to the petitioner on any ground other 

than those specified for automatic revocation. 8 C.F.R. § 205.2. USCIS must 

issue a NOIR, explaining the reasons the approved petition should be revoked, 

and the petitioner must be given the opportunity to offer evidence in support 

of the petition and in opposition to the grounds alleged for revocation of the 

approval. 8 C.F.R. § 205.2. 

consular officer explaining the reasons for the petition 

return.318 The memorandum must clearly show the factual 

and concrete reasons for recommending revocation.319

Upon receipt, USCIS may (but does not always) issue 

notice to the petitioner that the petition has been returned 

by DOS.320 Upon review of the consular return package, 

the USCIS officer may issue a Notice of Intent to Revoke 

(NOIR) or an RFE.321 Depending on the respective service 

center’s procedures and the reason for the return, it may 

take weeks, months or even years for USCIS to take 

action on the return.322 If USCIS revokes the petition, the 

petitioner is notified of the right to appeal the decision, 

where applicable.323

If USCIS reaffirms the petition, the file is transferred back 

to the consulate through the NVC or KCC (depending 

on whether it is an immigrant or nonimmigrant petition) 

for continued processing, assuming the petition’s validity 

period has not expired. The consulate will again return 

the file to USCIS after reaffirmation if it continues to find 

strong evidence that supports revocation.324

Prior Recommendations and Ongoing Concerns 

In August 2007, the Ombudsman made a formal 

recommendation to USCIS to issue petitioners formal 

notice upon receipt of returned petitions from DOS, 

alerting customers to the location and status of their files.325

The Ombudsman also recommended USCIS establish 

and report processing goals for taking action on returned 

petitions.326 Without posted processing times, customers do 

318 Id. The packet is sent to the KCC or NVC via express mail or diplomatic 

pouch. Id. 319 9 Foreign Affairs Manual 504.2-8(B)(2)(a)(2). 320 When a nonimmigrant petition is returned through the KCC, for example, 

an affiliated attorney or representative is not notified. However, the return 

is supposed to be reflected in USCIS’ online “My Case Status” information 

tool. See Consular Returns: A Conversation with the Department of State and 

USCIS, supra note 315. 321 For files with missing information or inaccuracies, USCIS may issue a RFE. 

If the agency has reason to believe that fraud is involved, USCIS may issue a 

NOIR, requiring the petitioner to present new evidence supporting eligibility 

for the benefit sought. See Consular Returns: A Conversation with the 

Department of State and USCIS, supra note 315. 322 USCIS does not post processing times for consular returns. See Consular 

Returns: A Conversation with the Department of State and USCIS, supra note 

315. USCIS has informed the Ombudsman that the service centers do review 

petitions returned by a consulate on a first-in and first-out order, based upon 

when the centers receive the consular returns. Information provided by USCIS 

(Apr. 14, 2016). 323 8 C.F.R. § 205.2. 324 Consular Returns: A Conversation with the Department of State and USCIS, 

supra note 315. 325 Ombudsman Recommendation 33, “Recommendation on the Processing of 

Petitions that are Returned by the U.S. Department of State for Revocation/

Revalidation” (Aug. 24, 2007). 326 Id.
44 | ANNUAL REPORT TO CONGRESS JUNE 2016

not know when to expect action on their returned petitions. 

In addition, the Ombudsman recommended USCIS provide 

information about the revocation and revalidation processes 

on its website, linking to information provided on the DOS 

website so customers can better understand the roles each 

agency plays in the process.327

In response to the Ombudsman’s recommendations, USCIS 

indicated it issues a notice to the petitioner once a returned 

petition is received from DOS.328 USCIS agreed that posted 

processing time information would be helpful, but stated it 

would not be practical to establish standards for processing 

returned petitions because some returned cases (for 

example, in the case of suspected fraud) require lengthy 

investigations, and therefore longer processing times, than 

other returned petitions.329

In spite of USCIS’ 2008 assurance that customers receive 

notice of a consular return, customers continue to report 

lack of notice the file has been returned, as well as issues 

with file transfers between DOS and USCIS (specifically, 

where DOS claims it has sent the file to USCIS, but 

USCIS claims it has not received the file), files being sent 

to the wrong service center, and a general lack of action 

on returned petitions.330 Inconsistent notification of the 

return, coupled with a lack of posted processing times, 

leads to uncertainty for the individuals involved. While 

less than one-half percent of nonimmigrant cases and less 

than one percent of immigrant cases are returned by DOS 

to USCIS each year, 331 the impact of delays and, in some 

cases, complete lack of notice to individuals, families, and 

employers is tangible. Issues concerning the processing of 

consular returns continue to be reflected in the more than 

100 requests for case assistance made to the Ombudsman in 

the past 2 years. 

In addition, petition approvals with short validity periods 

expire before the beneficiary can benefit from the approval 

if the file is returned to USCIS from the consular post. 

This causes customers to incur additional expense to file a 

327 Id. 328 USCIS, Response to Recommendation #33 (May 23, 2008); https://www.dhs.

gov/xlibrary/assets/cisomb_uscisresponse_recommendation33_2008-05-23.

pdf (accessed Apr. 29. 2016). 329 Id. While the agency should certainly be thorough in its investigations, all 

USCIS product lines have a certain percentage of cases outside normal 

processing times because of factors beyond the control of the petitioner and 

the adjudicator (security concerns, fraud investigations, responses to complex 

RFEs, etc.). 330 Information provided through requests for case assistance. The majority of 

requests for assistance received by the Ombudsman involving consular returns 

dealt with cases pending longer than 12 months. 331 Consular Returns: A Conversation with the Department of State and USCIS, 

supra note 315.

second petition, almost always without knowledge of what 

led to the return. Fiancé petitions in particular suffer from 

this issue as they are valid for only 4 months from the date 

of approval.332 USCIS affirmed it will not reopen expired 

Form I-129F, Petition for Alien Fiancé(e) unless there is 

clear error regarding statutory eligibility in the record at the 

time of the original adjudication of the petition.333

The returned petition is typically returned to the USCIS 

service center or field office where the petition was 

originally adjudicated. However, the Ombudsman has 

handled requests for case assistance in which the file was 

erroneously sent to the National Records Center (NRC).334

The file remains at the NRC until the petitioner requests the 

file be transferred to the USCIS office where the petition 

was originally approved. 

Ongoing Plan of Action

In October 2015, the Ombudsman hosted a public 

teleconference on issues pertaining to consular returns, in 

which both DOS and USCIS participated.335 During the 

teleconference, stakeholders reported continued delays, 

some reflecting more than 3 years for resolution. Processing 

times remain indeterminate and inconsistent between the 

service centers. Teleconference participants from DOS 

and USCIS confirmed the agencies’ awareness of concerns 

related to delayed responses and reiterated their shared goal 

of processing returns efficiently while taking into account 

the competing priorities.336

The Ombudsman recommends files be digitized to ensure 

efficient processing, eliminating significant delays caused 

by physical file transfers between the two agencies. DOS 

acknowledged there is currently a pilot project to digitize 

immigrant files for transfer to and from a consular post.337

Communication regarding the return of files from DOS 

to USCIS should be done via secure email; alternatively, 

electronic transmission, with the proper security 

protections, could offer a secure way to store, organize, 

332 As of July 1, 2009, USCIS considers all Form I-129F petitions returned 

by DOS that have expired in accordance with 8 C.F.R. § 214.2(k)(5) to 

remain expired. See USCIS Presentation, “Form I-129F – Petition for Alien 

Fiancé(e),” https://www.uscis.gov/sites/default/files/USCIS/Resources/

Resources%20for%20Congress/Congressional%20Reports/I-129F%20

Petition%20for%20Alien%20Fiance%28e%29.pdf (accessed May 19, 2016). 333 See Id. 334 Information provided through request for case assistance. 335 Consular Returns: A Conversation with the Department of State and USCIS, 

supra note 315. 336 For example, USCIS confirmed that expediting a consular return review as 

possible, and is handled on a case-by-case basis. Id. 337 Id.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 45

share, and access files. Until USCIS and DOS find a 

way to transfer the files electronically, the Ombudsman 

recommends stakeholders ask for more information about 

the method of transmittal (diplomatic pouch or express 

mail); if the latter, the customer should obtain the tracking 

information from the express mail service in order to better 

track its movement.338

The Ombudsman also recommends the receiving USCIS 

service center verify the file is in the right place before 

storing. The Ombudsman reiterates USCIS should 

consistently send a receipt notice to the petitioner, regardless 

of where the petition is received. For example, if USCIS 

issued a notice indicating the file was received at the NRC, 

the customer would be alerted to contact USCIS to request 

a file transfer to a service center. Instead, files may languish 

at the NRC for an extended period of time when they should 

be with adjudicators at the originating service center.

338 According to DOS, the speed of immigrant visa petition returns depends upon 

the location of the post and the available mail services. Id.

Most importantly, the Ombudsman calls upon USCIS again 

to post on its website processing goals for consular returns. 

USCIS should also provide clear guidance to the public 

regarding the process and timeline for case resolution. 

Processing time goals need to be enforced across the 

service centers to ensure returned petitions do not languish 

in file rooms, even after allowing for higher and competing 

priorities. While USCIS stated in October 2015 that it tries 

to respond within 120 days after a response to a NOIR is 

received,339 requests for case assistance to the Ombudsman 

reflect different response times. Setting realistic 

expectations provides affected petitioners with knowledge 

and the ability to determine the most appropriate course of 

action—to allow the return to take its course (if possible) or 

to attempt to refile the petition. 

339 Id.
46 | ANNUAL REPORT TO CONGRESS JUNE 2016

Business and Employment

U.S. immigration policy helps foster economic growth, seeks 

to respond to labor market needs, and enhances U.S. global 

competitiveness. In this year’s Annual Report, the Ombudsman 

reviews issues involving the mobility of employment for 

immigrants, the integrity of investor immigrant petitions, 

challenges faced by employees and employers in the H-2 

programs, and delays in obtaining employment authorization 

documents. The Ombudsman continues to be concerned 

with the longstanding problems of quality and consistency of 

adjudications and unduly burdensome RFEs.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 47

Regulatory and Policy 

Developments in 

Employment-Based Petitions 

Responsible USCIS Offices: Service Center 

Operations Directorate and Office of Policy 

and Strategy 

During the reporting period, USCIS took a number of 

steps to implement President Obama’s Immigration 

Accountability Executive Action340 for businesses and 

immigrant workers, as outlined in the White House Visa 

Modernization Report (July 2015 Visa Modernization 

340 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 Mar. 15, 2016).

Report).341 On November 20, 2015, the agency published 

the draft policy memorandum Determining Whether 

a New Job is in “the Same or a Similar Occupational 

Classification” for Purposes of Section 204(j) Job 

Portability.342 Subsequently, on December 31, 2015, it 

published an NPRM343 to implement certain provisions 

of the American Competitiveness in the Twenty-First 

341 The White House issued what is known as the July 2015 Visa Modernization 

report after receiving feedback from internal and external stakeholders, 

and after consultation with affected federal agencies, in response to the 

Executive Action announced by the President on November 20, 2014. The 

report provided several recommendations related to the modernization of 

the immigration system, including recommendations related to employmentbased immigrant visa issuance. White House Memorandum, “Modernizing 

& Streamlining our Legal Immigration System for the 21st Century” (July 

2015); https://www.whitehouse.gov/sites/default/files/docs/final_visa_

modernization_report1.pdf (accessed Mar. 15, 2016). 342 USCIS Draft Policy Memorandum, “Determining whether a New Job is in 

‘the Same or a Similar Occupational Classification’ for Purposes of Section 

204(j) Job Portability” (Nov. 20, 2015); https://www.uscis.gov/sites/default/

files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/PEDDraft_Same_or_Similar_Policy_Memorandum_-_11.20.15.pdf (accessed Dec. 

16, 2015). 343 “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 

Improvements Affecting High-Skilled Nonimmigrant Workers; Proposed 

Rules,” 80 Fed. Reg. 81900, 81916 (Dec. 31, 2015). The comment period for 

the NPRM ended on February 29, 2016. 
48 | ANNUAL REPORT TO CONGRESS JUNE 2016

Century Act of 2000 (AC21).344 These policy changes 

followed USCIS’ publication of draft L-1B Policy 

Guidance Memorandum on March 24, 2015—nearly 4 

years after first advising the public it intended to issue 

updated L-1B guidance—which went into effect on August 

17, 2015.345

While these policy developments are expected to improve 

the adjudication of employment-based immigrant petitions, 

one persistent issue remains unaddressed: the legal standing 

of foreign worker beneficiaries. In the 2015 Annual Report, 

the Ombudsman recommended346 USCIS recognize the 

legal standing of beneficiaries of Forms I-140, Immigrant 

Petition for Alien Worker. 347 Unreconciled differences 

continue to exist between federal appellate court decisions 

that recognize employee standing as a due process 

issue, and USCIS’ regulatory position that Form I-140 

beneficiaries lack standing in the petition process.348

Given the significant backlog encountered by nationals 

of certain countries due to per country limitations on visa 

allocation, not recognizing the legal standing of Form 

I-140 beneficiaries can negatively affect thousands of 

intending immigrants. For example, absent legislative 

action to increase annual immigrant visa allotments, 

many intending immigrants already living and working 

in the United States will wait a decade or longer for an 

immigrant visa to become available. Absent portability, 

those individuals would be required to work for the same 

company, in the same position, performing the same job 

duties. The agency’s position that the beneficiary has no 

such standing creates a contradiction between the statutory 

right of immigrant portability in AC21 and the regulatory 

limitation on who is an “affected party.”349 As a result of 

USCIS’ position, the agency does not notify beneficiaries of 

actions that alter or extinguish their abilities to complete the 

immigration process. Consequently, the beneficiaries are in 

the United States for often lengthy periods, believing they 

are on track to become legal permanent residents. 

344 AC21, Pub. L. No. 106-313, 114 Stat. 1251. 345 USCIS Policy Memorandum, “L-1B Adjudications Policy” (Aug. 17, 2015); 

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/L1B_Memorandum_8_14_15_draft_for_FINAL_4pmAPPROVED.pdf

(accessed Feb. 8, 2016). 346 Ombudsman’s Annual Report 2015, p. 50. 347 The U.S. Supreme Court established that constitutional standing applies once 

a person demonstrates (1) an injury-in-fact; (2) that is fairly traceable to the 

challenged conduct of the defendant, and (3) can likely be redressed by a 

favorable decision by the district court. See Lujan v. Defenders of Wildlife, 

504 U.S. 555, 561-62 (1992). 348 See Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) (holding that 8 C.F.R. 

§ 103.3(a)(1)(iii)(B) does not bar a beneficiary as a recognizable plaintiff in 

federal court). 349 Compare INA § 204(j) with 8 C.F.R. § 103.3(a)(1)(iii)(B). 

Presidential Executive Action 

In November 2014, the President called on DHS, DOS, and 

DOL to modernize, improve, and clarify existing immigrant 

and nonimmigrant visa programs to benefit the U.S. 

economy, create jobs, and fully recognize the contributions 

of high-skilled foreign workers.350 He also called upon 

the agencies to clarify adjustment of status portability to 

provide relief to foreign national workers facing lengthy 

adjustment delays.351 

The July 2015 Visa Modernization Report resulting from 

the President’s Executive Action specifically directed DOS 

to consider revising the Visa Bulletin and ensure maximum 

usage of the annual allotment of immigrant visas.352

Beginning with the October 2015 Visa Bulletin, DOS 

established “filing dates” to be used by foreign national 

applicants in the United States who are expected to adjust 

status to legal permanent residence within a year of their 

respective priority dates.353

The report also directed DHS to clarify and expand protections 

for employment-based immigrants and nonimmigrants, 

recommending H-1B employees receive confirmation of 

the filing of a petition on their behalf, and employers update 

former employees on the status of previously filed petitions.354

These small but important changes, if carried out, would bring 

immigration procedures in alignment with AC21’s “porting” 

provisions,355 giving employees improved awareness of their 

immigration status, and better enabling them to make fully 

informed career decisions.

For many years after Congress enacted the AC21 portability 

provisions, USCIS followed interim guidance issued in 

2005356 that directed adjudicators how to determine if the 

350 Fact Sheet: Immigration Accountability Executive Action, supra note 340. 351 Id. 352 Modernizing & Streamlining our Legal Immigration System for the 21st 

Century, supra note 341. 353 Consequently, eligible applicants (and their derivative family members) 

are able to file Form I-485, Application to Register Permanent Residence 

or Adjust Status and other related forms that confer “interim benefits” (i.e., 

employment authorization and advance parole) while awaiting the conclusion 

of the adjustment process. 354 Modernizing & Streamlining our Legal Immigration System for the 21st 

Century, supra note 341. 355 AC21 § 105. Specifically, section 105 of AC21 permits nonimmigrant 

workers in H-1B status to begin working for a new employer-petitioner 

immediately upon USCIS’ receipt—not adjudication—of Form I-129, Petition 

for a Nonimmigrant Worker from the new employer. AC21 also authorizes 

employers of certain H-1B nonimmigrants to file H-1B extension petitions 

beyond the 6-year time-period otherwise set by statute. 356 USCIS Interoffice Memorandum, “Interim guidance for processing I-140 

employment-based immigrant petitions and I-485 and H-1B petitions affected 

by the American Competitiveness in the Twenty-Frist Century Act of 2000 

(AC21) (Public Law 106-313)” (December 27, 2005); https://www.uscis.

gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/

Archives%201998-2008/2005/ac21intrm122705.pdf (accessed Apr. 27, 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 49

position with the new employer is in a “same or similar 

occupational classification” as the original job. However, 

the guidance did not sufficiently address I-140 withdrawals 

or revocations, and how they impact the ported employee 

seeking to adjust to permanent resident status. 

On November 20, 2015, USCIS posted for public 

comment the draft policy memorandum Determining 

Whether a New Job is in ‘the Same or a Similar 

Occupational Classification’ for Purposes of Section 

204(j) Job Portability.357 The policy memorandum 

instructed USCIS employees to use DOL’s Standard 

Occupational Classification358 (SOC) codes and other 

evidence to determine if a new job is in the same or similar 

occupational classification as the original job offer in an 

approved I-140 petition. On March 18, 2016, USCIS issued 

the memorandum in final form,359 which contained several 

modifications based on stakeholder feedback but did not 

address many of the larger concerns raised. 

For example, stakeholders’ public comments360 suggested the 

memorandum was (1) unnecessary, (2) ill-timed (given the 

agency’s NPRM encompassing a variety of other important 

AC21 provisions), (3) out of alignment with the President’s 

Executive Action Directive and July 2015 Visa Modernization 

Report, and (4) unduly restrictive (given its selective use 

of definitions361 that arguably narrow the meaning of the 

term “similar”). More specifically, stakeholders expressed 

357 Determining whether a New Job is in ‘the Same or a Similar Occupational 

Classification’ for Purposes of Section 204(j) Job Portability, supra note 342. 358 See DOL Bureau of Labor Statistics, http://www.bls.gov/soc/ (accessed Apr. 

5, 2016). 359 Determining Whether a New Job is in ‘the Same or a Similar Occupational 

Classification’ for Purposes of Section 204(j) Job Portability, supra note 342. 360 See, e.g., Council for Global Immigration’s letter to USCIS Office of Public 

Engagement, “Re: Comments on Draft PM-602-0122, Determining Whether a 

New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes 

of Section 204(j) Portability” (Jan. 4, 2016); https://www.shrm.org/Advocacy/

PublicPolicyStatusReports/Courts-Regulations/Documents/CFGI%20

SHRM%20Same%20or%20Similar%20Comment%20FINAL%201-4-16.

pdf (accessed May 20, 2016); American Immigration Lawyers Association’s 

(AILA) letter to USCIS Office of the Director, “RE: PM-602-0122: 

Determining Whether a New Job is in ‘the Same or a Similar Occupational 

Classification’ for Purposes of Section 204(j) Job Portability (November 20, 

2015)” (Jan. 4, 2016); http://www.aila.org/infonet/aila-council-commentssame-similar-draft-policy (AILA Doc. No. 16010430) (accessed Apr. 

28, 2016). 361 The memorandum cites Merriam-Webster’s Dictionary Online to define the 

term “similar” as to “share essential qualities,” but also includes a second 

definition—having a “marked resemblance or likeness.” This second meaning 

is drawn from the Oxford English Dictionary Online, http://www.oed.com/

view/Entry/179873?redirectedFrom=similar#eid (accessed Apr. 6, 2016). 

To appreciate this point, the Ombudsman notes that Merriam-Webster’s 

Dictionary Online contains the following definitions of the word similar: 

“having characteristics in common,” “strictly comparable, alike in substance 

or essentials, corresponding.” Merriam-Webster.com, http://www.merriamwebster.com/dictionary/similar (accessed Apr. 6, 2016). In combination 

these meanings appear to be more expansive than the cited Oxford English 

Dictionary Online definition—having a “marked resemblance or likeness.” 

concern with the heavy emphasis on DOL’s SOC codes in 

conducting a “same or similar” analysis and adjudication. 362

For some occupations, DOL’s SOC codes do not accurately 

capture changes in the nature and type of work emerging 

in the U.S. economy—something DOL has acknowledged 

requires updating.363 Stakeholders believed this new guidance 

will likely result in increased uncertainty, confusion, and 

controversy, not less.364The Ombudsman recommends 

USCIS track these issues and address through policy 

guidance the need for deviation from SOC codes when 

sector specific patterns reflect new ways of doing business.

NPRM on AC21 and Other Employment-Based Issues

The NPRM published on December 31, 2015 addressed 

the effect of a petitioner withdrawing an approved 

I-140 petition. A petitioner’s withdrawal of the I-140 

or termination of the petitioner’s business would not 

cause an automatic revocation of an I-140 that has been 

approved for 180 days or more, provided the agency is 

not seeking to otherwise revoke the petition due to fraud, 

material misrepresentation, invalidation or revocation of a 

permanent labor certification, or USCIS error. To effectuate 

this proposed regulatory provision, a new Form I-140 must 

be filed by an employer, and, if approved, will be assigned 

the earlier petition’s priority date.365

Beneficiary Standing

Currently, USCIS does not recognize the standing of a 

beneficiary in a petition filed on behalf of an employee. 

USCIS cites to its longstanding regulatory definition of 

“affected party,” found in 8 C.F.R. section 103.3(a)(1)(iii)

(B), that defines an affected party as “the person or entity 

with legal standing in a proceeding. It does not include 

the beneficiary of a visa petition....” Consistent with this 

provision, USCIS does not provide notice to the ported 

362 See, e.g., Council for Global Immigration’s letter to USCIS Office of Public 

Engagement, supra note 360. AILA letter to USCIS Office of the Director, 

supra note 360. Greg Siskind, “USCIS ‘Same or Similar’ Memo – An 

Example of Being Careful What You Wish For?,” ILWblog (Nov. 30, 2015); 

http://blog.ilw.com/gregsiskind/2015/11/30/uscis-same-or-similar-memo-anexample-of-being-careful-what-you-wish-for/ (accessed Apr.28, 2016). 363 The last DOL SOC was published in 2010. DOL Webpage, “Standard 

Occupational Classification: 2010 SOC Revision Process Materials;’” http://

www.bls.gov/soc/revisions_2010.htm (accessed Apr. 27, 2016). Prior to 2010, 

the last DOL SOC codes were published in 2000. DOL, SOC Revision Policy 

Committee, “2000 SOC;” http://www.bls.gov/soc/2000/soc-structure-2000.pdf

(accessed Apr. 27, 2016). 364 Council for Global Immigration’s letter to USCIS Office of Public 

Engagement, supra note 360. AILA letter to USCIS Office of the Director, 

supra note 360. 365 “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 

Improvements Affecting High-Skilled Nonimmigrant Workers; Proposed 

Rules,” 80 Fed. Reg. 81900, 81916 (Dec. 31, 2015).
50 | ANNUAL REPORT TO CONGRESS JUNE 2016

beneficiary or to the new employer if it reconsiders the 

underlying Form I-140. Typically, reconsideration comes 

in the form of a Notice of Intent to Revoke (NOIR) to 

the former employer.366 USCIS’ failure to provide notice 

and an opportunity to respond to allegations that could 

effectively extinguish the viability of the approved petition 

leaves the intended employee and new employer to which 

the employee lawfully ported unaware of the employee’s 

inability to continue with the permanent residence process. 

Revocation without notice to the employee and new employer 

deprives the new employer of its investment in recruiting and 

developing the ported employee. 

The definition of affected party in the regulation was 

issued in 1990, a decade before Congress enacted AC21.367

USCIS’ reliance on the definition is outdated given 

the explicit portability provisions contained in AC21. 

Moreover, various federal courts have considered questions 

of employee standing as a due process issue.368

Since 2013, several U.S. federal courts have considered 

the question of a ported employee’s standing in I-140 

adjudications, holding a beneficiary has a cognizable 

interest in the adjudicatory process, entitling the beneficiary 

to some type of notification. In Patel v. USCIS, 732 F.3d 

633, 636 (6th Cir. 2013), the United States Court of Appeals 

for the Sixth Circuit found the beneficiary of an I-140 visa 

petition was within the “zone of interests” protected by 

the I-140 visa petition process because a permanent visa is 

366 8 C.F.R. § 205.2(b). 367 See “Appeals, Precedents, Certifications and Motions; Final Rule,” 55 

Fed. Reg. 20767, 20768 (May 21, 1990). The Supplementary Information 

accompanying the final rule implementing the definition in 1990 explains the 

beneficiary’s exclusion from the definition of “party” by noting that “a visa 

petition proceeding has long been a proceeding between the petitioner and the 

Service” and that consequently “[t]he beneficiary of the petition does not have 

any standing in such a proceeding.” 368 Even before AC21 expanded the view of a foreign national beneficiary as 

having an interest in the petition at least as strong as that of its employer, 

courts recognized that the employee stood within the “zone of interest” that 

entitled him or her to standing in a judicial challenge to agency actions. For 

example, the Seventh Circuit, in a case of first impression, found that the 

beneficiary of an I-140 visa petition falls within the zone of interest of the 

statute, because the provision allowing the admission of qualified aliens was 

“intended at least for the protection of aliens who are arguably entitled to enter 

or remain in the United States on the basis of those standards.” Stenographic 

Machines, Inc. v. Regional Administrator for Employment Training, 577 F. 

2d 521, 528 (7th Cir. 1978). The Fourth Circuit was the first circuit to address 

specifically a challenge relating to a petition action, finding that a foreign 

national employee “was in the ‘zone of interest’ of the statute and has standing 

to challenge” the denial of his prospective employer’s visa application. Taneja 

v. Smith, 795 F.2d 355, 358 n. 7 (4th Cir. 1986). Having put forth that the 

beneficiary falls within the zone of interest, various courts have since offered 

further legal insight into the matter of legal standing. See DeJesus Ramirez 

v. Reich, 156 F.3d 1273, 1276 (D.C. Cir. 1998) (a foreign national has legal 

standing when the statute’s text, structure, or legislative history does not 

preclude such action). 

made directly available to the beneficiary, not the petitioner, 

upon successful completion of the adjustment process. In 

Kurapati v. U.S. Bureau of Citizenship and Immigration 

Services, 775 F.3d 1255, 1260 (11th Cir. 2014), the 

Eleventh Circuit concluded that an I-140 beneficiary is 

not precluded from having constitutional standing as an 

“affected party” in federal court. 

In Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015), 

the Second Circuit found that although 8 C.F.R. section 

103.3(a)(1)(iii)(B)369 may not give standing to a beneficiary 

before USCIS, it does not bar a beneficiary from having 

standing in federal court. Notwithstanding these court 

decisions, USCIS continues to take the position the clear 

language of 8 C.F.R. section 103.3(a)(1)(iii)(B) permits 

only the initial I-140 petitioner legal standing before the 

agency, and not the beneficiary.370

The Ombudsman shares the concerns of the Second Circuit 

Court of Appeals that, under this reasoning, beneficiaries 

may be relegated to “a position of either blind faith in the 

original petitioner’s goodwill and due diligence or a forced 

and continued relationship with the now-disinterested and 

perhaps antagonistic original petitioner ....”371

Recommendation

AC21 included clear Congressional intent to provide 

certain qualified employees greater employment mobility 

while awaiting the completion of the permanent residence 

process. USCIS must reconsider its position on I-140 

employee standing and make a corresponding regulatory 

change, fully aligning its policy to the letter and spirit of 

AC21. Separately, the Ombudsman recommends USCIS 

issue additional guidance giving the phrase “same or 

similar occupational classification” an expansive reading, 

consistent with the plain meaning of those words as found 

in INA section 204(j) as well as with Congressional intent in 

enacting AC21. 

369 “For purposes of this section and §§ 103.4 and 103.5 of this part, ‘affected 

party’ (in addition to the Service) means the person or entity with legal 

standing in a proceeding. It does not include the beneficiary of a visa petition. 

An affected party may be represented by an attorney or representative in 

accordance with part 292 of this chapter.” 8 C.F.R. § 103.3(a)(1)(iii)(B). 370 It is noted that USCIS solicited amicus curiae briefs on this issue in August 

2015, but no further action on this issue has been signaled. See USCIS 

Memorandum, “USCIS Administrative Appeals Office: Request for Amicus 

Curiae Briefs” (Apr. 7, 2015); https://www.uscis.gov/sites/default/files/

USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/3-

27-15-AAOamicus.pdf (accessed Mar. 1, 2016). 371 Mantena v. Johnson, 809 F.3d 721, 735 (2d Cir. 2015).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 51

EB-5 Immigrant Investor 

Program Update

Responsible USCIS Offices: Immigrant Investor 

Program Office and Field Operations Directorate

Prompted by the sunset of the EB-5 Regional Center 

authority on September 30, 2015,372 Congress debated 

whether to continue and modify the EB-5 Regional Center 

program. Congressional oversight hearings referenced 

reports critical of the EB-5 program373 issued by the 

General Accountability Office (GAO) in August 2015374

and February 2016,375 and DHS OIG in March 2015.376 The 

confluence of criticism and diverging opinions introduced 

a new level of uncertainty in the EB-5 program. Yet 

Congress, in the end, simply extended the Regional Center 

program sunset date to September 30, 2016,377 intending to 

revisit new and longstanding deficiencies in the program at 

the end of this fiscal year.378

As reported in past years, processing times for EB-5 petitions 

continue to exceed a year and have not improved. As of 

March 31, 2016, USCIS reported the following processing 

times at the Investor Program Office (IPO): 16.3 months 

for Form I-526, Immigrant Petition by Alien Entrepreneur; 

and 16.9 months for Form I-829, Petition by Entrepreneur 

to Remove Conditions. While the processing time for Form 

I-924, Application For Regional Center Under the Immigrant 

Investor Pilot Program is 9 months, like the other forms, the 

372 Departments of Commerce, Justice, and State, the Judiciary, and Related 

Agencies Appropriations Act, Pub. L. No. 112-176, sec. 1, § 610, 126 Stat. 

1325 (2012). 373 “The Failures and Future of the EB-5 Regional Center Program: Can it be 

Fixed?” before the U.S. Senate Committee on the Judiciary, 114th Cong. 

2nd Sess. (Feb. 2, 2016); http://www.judiciary.senate.gov/meetings/thefailures-and-future-of-the-eb-5-regional-center-program-can-it-be-fixed; “Is

the Investor Visa Program an Underperforming Asset?” before the House 

Committee on the Judiciary, 114th Cong. 2nd Sess. (Feb. 11, 2016); https://

judiciary.house.gov/wp-content/uploads/2016/02/114-58_98626.pdf (accessed

June 20, 2016). 374 GAO Report, “Immigrant Investor Program: Additional Actions Needed to 

Better Assess Fraud Risks and Report Economic Benefits,” GAO-15-696 

(Aug. 2015); http://www.gao.gov/products/GAO-15-696 (accessed Mar. 

30, 2016). 375 “Immigrant Investor Program: Additional Actions Needed to Better Assess 

Fraud Risks and Report Economic Benefits,” before the U.S. House Judiciary 

Committee, 114th Cong. 2nd Sess. (2016) (statement of Rebecca Gambler, 

Director Homeland Security and Justice); http://www.gao.gov/products/GAO16-431T (accessed Mar. 30, 2016). 376 DHS OIG Interoffice 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_mga032415.pdf (accessed Mar. 30, 2016). 377 Department of Homeland Security Appropriations Act, 2016, Pub. L. No. 114-

113, sec. 575, § 610(b), 129 Stat. 2242, 2526. 378 Id.

processing time has not improved. All the referenced lengths 

of time are longer than USCIS’ posted processing times 

reported in 2015.379 The current processing times raise the 

question whether the IPO is adequately staffed to administer 

the EB-5 program given the high volume of filings it has 

received over the past several years. 

Stakeholders also shared concerns regarding IPO’s 

regulatory authority to administer the program, outdated 

regulatory requirements, program integrity in light of 

allegations and findings of fraud or noncompliance 

with other federal laws, the manipulation of Targeted 

Employment Areas (TEAs)380 through gerrymandering, and 

the inconsistent implementation of deference policy.381

Background

The EB-5 program offers foreign entrepreneurs a way 

to immigrate to the United States in exchange for their 

investments.382 As discussed in the 2015 Annual Report, 

Congress established requirements for the source and use of 

the funds, including those invested through Regional Centers, 

and set limits to the number of visas allocated each year.383

Ongoing Concerns

EB-5 Program Processing Times. At the beginning of 

January 2016, 21,988 Form I-526 petitions were pending 

with IPO,384 15 percent of which were received in 

December 2015 in advance of the potential sunset of or 

modification to the EB-5 program.385

379 USCIS Webpage, “USCIS Processing Time Information for the Immigrant 

Investor Program Office” (Jan. 31, 2016); https://egov.uscis.gov/cris/

processingTimesDisplay.do;jsessionid=abcOv-xVkeER77TdRLipv (accessed 

Mar. 30, 2016). 380 “Is the Investor Visa Program an Underperforming Asset?” before the

House Committee on the Judiciary, 114th Cong. 2nd Sess. 43 (2016) 

(statement of Jeanne Calderon, Clinical Associate Professor, Stern School 

of Business, New York University); https://judiciary.house.gov/wp-content/

uploads/2016/02/114-58_98626.pdf (accessed May 16, 2016). 381 “The Failures and Future of the EB-5 Regional Center Program: Can it be 

Fixed?,” before the U.S. Senate Committee on the Judiciary, 114th Cong. 

2nd Sess. (2016) (statement of Nicholas Colucci, Chief, Office of Immigrant 

Investor Program, U.S. Citizenship and Immigration Services); https://www.

judiciary.senate.gov/imo/media/doc/02-02-16%20Colucci%20Testimony.pdf 

(accessed May 16, 2016). 382 Immigration Act of 1990 § 121(b)(5), Pub. L. No. 101-649. 383 Ombudsman Annual Report 2015, p. 46. 384 Information provided by USCIS (Apr. 28, 2016). 385 Separately, as of January 2016, 912 Forms I-924 were pending with the IPO, 

which was adjudicating applications receipted in FY 2014. In addition, 4,314 

Forms I-829 were awaiting decisions. Information provided by USCIS (Mar. 

17, 2016). See also USCIS Webpage, “Data Set: All USCIS Application and 

Petition Form Types” (Sept. 2015); https://www.uscis.gov/tools/reportsstudies/immigration-forms-data/data-set-all-uscis-application-and-petitionform-types (accessed Apr. 26, 2016).
52 | ANNUAL REPORT TO CONGRESS JUNE 2016

On February 2, 2016, during the Senate Judiciary 

Committee hearing “On the Failures and Future of the 

EB-5 Regional Center Program: Can it be Fixed?,” the 

IPO shared information on its hiring plans currently 

underway.386 At the time of the hearing, IPO staff, excluding 

FDNS professionals and counsel, totaled 110 employees 

(60 adjudicators, 28 economists, and 22 additional staff 

responsible for the direct support and management of 

the program).387 The IPO Director testified the office is 

“currently recruiting to fill vacancies to bring IPO to its FY 

2016 authorized staffing level of 171 in an effort to reduce 

our backlog.”388

Address Abuse and Increase Integrity of the EB-5 

Program. IPO is working with DOJ, the FBI, the 

U.S. Securities and Exchange Commission, and other 

components of the Federal Government to detect, deter, 

and eliminate abuse in the EB-5 program.389 To increase 

integrity in the EB-5 program, IPO proposed the following 

to Congress: grant IPO the authority to act quickly on 

criminal and security concerns, and regulate regional center 

principals and associated commercial enterprises; enhance 

requirements for regional center annual reporting processes; 

and authorize USCIS to fine or temporarily suspend 

regional centers, as appropriate.390 IPO also recognized the 

need for a statutory change to increase the EB-5 program’s 

capital investment, which has not changed in 25 years.391

Furthermore, IPO opened a dialogue with stakeholders 

to discuss changes to the program, TEAs, geographical 

scope of regional centers, and the value of exemplar filings, 

among other areas of concern.392

Configuration of Targeted Employment Areas. The 

establishment of TEAs in affluent urban areas and the 

geographic manipulation of these investment areas 

pose tensions with those from rural areas. According to 

testimony before the House Judiciary Committee, IPO does 

not have statutory authority to challenge a TEA designation, 

386 The Failures and Future of the EB-5 Regional Center Program: Can it be 

Fixed?, supra note 381 (statement of Nicholas Colucci, Chief, Office of 

Immigrant Investor Program, U.S. Citizenship and Immigration Services). 387 Id. at 3. 388 Id. 389 Information provided by IPO (Mar. 1, 2016). 390 Is the Investor Visa Program an Underperforming Asset?, supra note 373 

(statement of Nicholas Colucci, Chief, Office of Immigrant Investor Program, 

U.S. Citizenship and Immigration Services). 391 Id. 392 USCIS Teleconference, “EB-5 Immigrant Investor Program: Listening 

Session” (Apr. 25, 2016).

as state authorities make this determination under the 

current regulations under 8 C.F.R. section 204.6(i).393

Verifying Source of Funds. Confirming the legitimacy of 

fund sources remains another major area of concern in the 

EB-5 program. According to a GAO report presented before 

the House Judiciary Committee on February 11, 2016:

USCIS’s 2012 risk assessment identified the source of 

EB-5 petitioner funds as an area at risk for fraud.... 

USCIS officials said that some petitioners may have 

strong incentives to report inaccurate information 

about the sources of their funds on their petitions or 

use fraudulent documents in instances when the funds 

come from illicit—and thus ineligible—sources, 

such as funds obtained through drug trade, human 

trafficking, or other criminal activities. USCIS and 

State officials noted that verifying a lawful source 

of funds was difficult as they did not have authority 

to access and verify banking information with many 

foreign countries, and USCIS officials said that 

therefore IPO and FDNS did not have a means to verify 

self-reported immigrant financial information stated to 

come from these foreign banks.394

The same GAO report stated, “USCIS had taken some 

steps to enhance its fraud risk management efforts. These 

included establishing a dedicated entity to design and 

oversee its fraud risk management activities, creating 

an organizational structure conducive to fraud risk 

management, conducting fraud-awareness training, and 

establishing collaborative relationships with external 

stakeholders, including law enforcement agencies.”395

Apply Deference Principles More Consistently. Per the IPO’s 

May 2013 EB-5 Adjudications Policy Memorandum,396 the 

grant of deference in appropriate circumstances is to ensure 

IPO will not reexamine determinations made in previous 

EB-5 filings. “Where USCIS has evaluated and approved 

certain aspects of an EB-5 investment, that favorable 

393 “Is the Investor Visa Program an Underperforming Asset?,” before the House 

Committee on the Judiciary, 114th Cong. 2nd Sess. 16-17 (2016) (statement 

of Nicholas Colucci, Chief, Office of Immigrant Investor Program, U.S. 

Citizenship and Immigration Services); https://judiciary.house.gov/wpcontent/uploads/2016/02/114-58_98626.pdf (accessed May 16, 2016). 394 “Is the Investor Visa Program an Underperforming Asset?,” before the House 

Committee on the Judiciary, 114th Cong. 2nd Sess. 28-29 (2016) (statement 

of Rebecca Gambler, Homeland Security and Justice Director, GAO); https://

judiciary.house.gov/wp-content/uploads/2016/02/114-58_98626.pdf (accessed

May 16, 2016). 395 Id. 396 USCIS Policy Memorandum, “EB-5 Adjudications Policy” (May 30, 2013), 

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

EB-5%20Adjudications%20PM%20%28Approved%20as%20final%205-30-

13%29.pdf (accessed May 16, 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 53

determination should generally be given deference at a 

subsequent stage in the EB-5 process.”397

However, stakeholders have provided evidence of IPO’s 

inconsistent use of this policy, where IPO approves 

some EB-5 regional center petitions, while issuing RFEs 

and denying other petitions for the same project. The 

Ombudsman has brought this issue to the attention of IPO 

leadership, and it has declined to respond.398

Ongoing Plan of Action

USCIS has signaled it intends to start rulemaking in this 

area.399 In addition, Congress is expected to legislate 

reforms in the EB-5 program when it revisits the September 

30, 2016 sunset date of the Regional Center program.400

The Ombudsman will continue to address stakeholders’ 

concerns with the quality, consistency, and timeliness of 

IPO’s adjudication of applications and petitions under the 

EB-5 program. 

397 Id. 398 Information provided by IPO (Mar. 1, 2016). 399 USCIS Teleconference, “EB-5 Immigrant Investor Program: Listening 

Session” (Apr. 25, 2016). 400 Department of Homeland Security Appropriations Act, 2016, Pub. L. No. 114-

113, sec. 575, § 610(b), 129 Stat. 2242, 2526.

H-2 Temporary Workers and 

Labor Trafficking 

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates

During the reporting period, the Ombudsman heard from 

U.S. employers about challenges navigating DOL and 

USCIS processes to fill temporary agricultural (H-2A) 

and non-agricultural (H-2B) jobs.401 Simultaneously, the 

Ombudsman heard from workers’ rights organizations 

regarding the vulnerabilities to exploitation suffered by 

H-2 workers in the form of involuntary servitude or forced 

labor. Victims of human trafficking and related workplacebased crimes may seek humanitarian immigration relief 

by applying to USCIS for U or T nonimmigrant status.402

During this reporting period, the Ombudsman has monitored 

interagency activities to address stakeholder concerns, and 

401 INA §§ 101(a)(15)(H)(ii)(a)-(b); 8 C.F.R. §§ 214.2(h)(5)-(6); see infra,

“H-2B Temporary Non-Agricultural Workers—Program Developments and 

Challenges.” 402 U nonimmigrant status is 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 have been helpful, are being helpful, or are likely to be helpful in 

the investigation or prosecution of criminal activity. See INA § 101(a)(15)(U)

(i). T nonimmigrant status is available to victims of severe forms of trafficking 

in persons who comply with reasonable requests for assistance from law 

enforcement in the investigation or prosecution of human trafficking cases. 

INA § 101(a)(15)(T)(i). There is no statutory cap in the T visa, but filings for 

T principal applicants have remained low.
54 | ANNUAL REPORT TO CONGRESS JUNE 2016

worked to resolve requests for case assistance by workers 

encountering challenges in their pursuit of protective 

immigration benefits. 

Background

Federal agencies responsible for worker protections seek to 

protect all workers from exploitation and violations of their 

rights, regardless of immigration status. Nevertheless, many 

workers are deterred or prevented from asserting workplace 

rights and protections because of their immigration status, 

or because they are not aware of the protections available 

to them. In March 2015, the GAO published a report on 

the need for increased protections for H-2A and H-2B 

workers.403 Despite the commitment of additional federal 

resources to educate and empower seasonal and other 

workers over the past decade, unscrupulous employers and 

criminal enterprises continue to exploit H-2 workers who 

remain vulnerable to human trafficking.404 Stakeholders 

continue to contend gaps in the institutional structure of the 

H-2 programs have exacerbated existing vulnerabilities. 

In response to President Obama’s series of Executive 

Actions on immigration announced on November 20, 

2014, DOL established an interagency working group to 

identify policies and procedures promoting the consistent 

enforcement of federal labor, employment, and immigration 

laws to protect all workers in the United States.405

Congress created the U and T visas as part of VTVPA 

to protect non-citizen victims of violent crimes as well 

as strengthen the ability of law enforcement agencies, 

including labor enforcement agencies, to investigate and 

prosecute certain criminal activities against immigrants.406

The VTVPA offers important protections to victims 

who fear cooperating with law enforcement due to their 

immigration status. By including governmental labor 

agencies as a certifying authority, Congress explicitly 

recognized the challenges in gaining the trust of the 

immigrant workforce and enforcing consistent employment 

protections across American industries. Federal, state, and 

local labor and civil rights enforcement agencies have taken 

an active role in certifying U nonimmigrant status petitions 

for immigrant victims of workplace-based criminal activity, 

403 GAO Report, “H-2A and H-2B Visa programs: Increased Protections Needed 

for Foreign Workers,” GAO-15-154 (Mar. 2015); http://www.gao.gov/

assets/670/668875.pdf (accessed May 2, 2016). 404 Id. 405 DOL Fact Sheet, “Establishment of Interagency Working Group for the 

Consistent Enforcement of Federal Labor, Employment and Immigration 

Laws;” http://www.dol.gov/general/immigration/interagency-working-group

(accessed Mar. 16, 2016). 406 Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 

1464 (codified as amended in scattered sections of 8 U.S.C.)

and providing declarations for T nonimmigrant status 

applications for labor trafficking crimes407 to enhance 

cooperation in key enforcement investigations.408 ICE 

Homeland Security Investigations supports labor trafficking 

investigations in state and local communities as well. 409

USCIS conducts regular cross-trainings with federal and 

state labor agencies to improve understanding of how 

it can support enforcement of labor and anti-trafficking 

laws through deferred action, parole, or protections for 

immigrant victims like the U and T visas. Through these 

trainings, USCIS provides guidance on best practices to law 

enforcement authorities for certification.410 In December 

2015, the Ombudsman coordinated an update to the DHS 

U/T Law Enforcement Resource Guide, and contributed 

additional information on labor trafficking and workplace 

based crimes.411

Enhanced Federal Engagement

Stakeholders made recommendations to strengthen 

protections for workers across visa categories, leading 

to a renewed effort by federal partners, including DHS, 

DOL, and DOS, to work together to address program 

vulnerabilities.412 Recommendations received included 

improving transparency in the recruitment process, creating 

accountability in employment relationships, ensuring 

access to justice, regulating the causes of economic 

407 To qualify for the U and T visa, the victims must prove to USCIS that they 

have cooperated with law enforcement. See INA § 101(a)(15)(T)-(U). A 

primary way a victim may demonstrate cooperation is by submitting a signed 

statement from law enforcement as part of the application or petition. See 8 

C.F.R. § 214.14. In the U visa context, this statement is a required part of the 

petition and is known as USCIS Form I-918, Supplement B, U Nonimmigrant 

Status Certification (Form I-918B or certification). In the T visa context, this 

statement is known as USCIS Form I-914, Supplement B, Declaration of 

Law Enforcement Officer for Victim in Trafficking of Persons (Form I-914B 

or declaration). See 8 C.F.R. § 214.11. While not required for a T visa, the 

signed declaration provides valuable evidence of the victim’s cooperation. 

Exceptions to the cooperation requirement exist for U and T visa applicants 

and petitioners who are under age 18 or who have suffered trauma. INA § 

101(a)(15)(T)(i), (a)(15)(U)(i)(I). 408 DOL Fact Sheet, “The Department of Labor’s Wage and Hour Division Will 

Expand Its Support Of Victims of Human Trafficking and Other Crimes 

Seeking Immigration Relief from DHS;” http://www.dol.gov/general/

immigration/u-t-visa (accessed Mar. 1, 2016). 409 DHS Webpage, “Human Trafficking;” https://www.ice.gov/human-trafficking

(accessed Mar, 16, 2016). 410 DOL Fact Sheet, “Interagency Working Group for the Consistent Enforcement 

of Federal Labor, Employment and Immigration Laws: Action Plan 

Update” (Dec. 2015); http://www.dol.gov/dol/fact-sheet/immigration/

IWGDecember2015ProgressReport.htm (accessed Mar. 16, 2016). 411 Odom and Fong, supra note 25. (accessed Mar. 1, 2016). 412 Information provided during public meeting with International Labor 

Recruitment Working Group (ILRWG) hosted by DOL, (Feb. 24, 2016). See 

also GAO Report, H-2A and H-2B Visa Programs: Increased Protections 

Needed for Foreign Workers, supra note 403.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 55

coercion, and prohibiting discrimination and retaliation.413

As Blue Campaign Chair, the Ombudsman will continue 

to facilitate the DHS response to these recommendations, 

including guiding internal conversations with DHS partners 

and encouraging dialogue with stakeholders to identify subregulatory solutions that can be started both in the short and 

long term.414

Whistleblower Protections for H-2 Workers

Stakeholders allege employers retaliate against, or otherwise 

coerce, workers believed to be involved in various labor 

rights actions by falsely reporting to USCIS that employees 

have absconded, or abandoned their employment, or the 

employer no longer needs to fill the position. An employer’s 

retaliatory conduct jeopardizes a worker’s ability to change 

employers or obtain future visas enabling them to return to 

the United States.415 Although USCIS’ regulations require 

an employer to report abscondments,416 the agency does 

not have a formal process to notify the named worker or 

investigate claims of retaliation.417 Accordingly, workers 

may be unaware of employer abscondment allegations 

until they appear for a future visa interview at an overseas 

consular post. While at times a worker is able to provide 

evidence to disprove false claims, having to do so results 

in significant visa issuance delays, and may result in a visa 

refusal and loss of future employment. 

Disincentives to Reporting Illegal Recruiting Fees

By signing Form I-129, Petition for a Nonimmigrant 

Worker, employers attest to the truthfulness of all 

documents submitted with that petition, including 

413 Id. 414 See generally ILRWG, “The American Dream Up for Sale: A Blueprint 

for Ending International Labor Recruitment Abuse” (Feb. 2013); https://

www.splcenter.org/sites/default/files/d6_legacy_files/downloads/resource/

final-e-version-ilrwg-report_0.pdf (accessed May 3, 2016); Urban Institute, 

“Understanding the Organization, Operation, and Victimization Process of 

Labor Trafficking in the United States” (Oct. 21, 2014); http://www.urban.org/

research/publication/understanding-organization-operation-and-victimizationprocess-labor-trafficking-united-states (accessed May 3, 2016). 415 Public meeting with ILRWG hosted by DOL, supra note 412. See also H-2A 

and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, 

supra note 403, at 37. 416 8 C.F.R. § 214.2(h)(5)(vi) (H-2A abscondment) and 214.2(h)(6)(i)(F) (H2B abscondment). 417 Public meeting with ILRWG hosted by DOL, supra note 414. See also supra

note 405, at 56-57.

representations that petitioners are subject to U.S. law.418 

This is more specific with respect to H-2A and H-2B 

petitioners, which are required to attest that neither they 

nor their agents collected from the foreign workers any fee 

in exchange for being recruited, or other prohibited fees.419 

However, stakeholders report overseas recruiting agents 

continue to collect illegal recruiting fees.420 Workers are 

reluctant to report collection of illegal fees for fear they will 

subsequently lose their jobs and the income that would be 

used to repay debt incurred from fees.421

When USCIS or DOS discovers a fee violation, the visa 

will be denied and the petition subsequently revoked by 

the responsible agency. DHS regulations provide a 30-day 

extension of stay or other limited immigration relief to a 

worker who is the beneficiary of a revoked petition based 

on the worker’s payment of a prohibited fee, but it is unclear 

whether USCIS consistently provides this protection.422

Additionally, recruiting fee violations may serve as a basis to 

prohibit a petitioner from future use of the H-2 programs.423

While employers must sign a statement that they will 

assume full responsibility for all representations made 

by agents in the United States used in the recruitment 

process,424 there appears to be little legal authority to 

impose regulatory requirements on H-2 agents or entities 

located outside of the United States.425 Stakeholders report 

employers use recruitment agents who then sub-contract 

to third-party recruiters located in the workers’ home 

countries.426 The third-party recruiters pocket these illegally 

paid fees, which then place dependent workers in debt, and 

418 See infra “H-2B Temporary Non-Agricultural Workers Program 

Developments and Challenges” (discussing the filing process and 

requirements for H-2 visas); see also USCIS Form I-129, Petition for a Non 

Immigration Worker, p. 6 (Aug. 13, 2015); https://www.uscis.gov/sites/

default/files/files/form/i-129.pdf (accessed Mar. 16, 2016). 419 20 C.F.R. § 655.135(j); see also DOL Memorandum, “H-2A “Prohibited Fees” 

and Employer’s Obligation to Prohibit Fees,” Field Bulletin No. 2011-2 (May 

6, 2011); http://www.dol.gov/whd/FieldBulletins/fab2011_2.pdf (accessed 

Mar. 1, 2016). 420 H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign 

Workers, supra note 403, at 30, 37. 421 Public meeting with ILRWG hosted by DOL, supra note 412. See also Id. 422 See 8 C.F.R. § 214.2(h)(5)(xi)(B), 214.2(h)(6)(i)(C). 423 See 20 C.F.R. §§ 655.182(d)(viii), 655.73(f)(10); see also 8 C.F.R. § 214.2(h)

(5)(xi), 214.2(6)(i)(B). 424 See 20 C.F.R. §§ 655.20(aa), 655.135(k); USCIS Form I-129, Petition for a 

Non Immigration Worker, p. 6 (Aug. 13, 2015); https://www.uscis.gov/sites/

default/files/files/form/i-129.pdf (accessed Mar. 16, 2016). 425 See 20 C.F.R. §§ 655.22(g)(2), 655.182(b); 29 C.F.R. § 501.20(d)(1)(viii). 

Employer agents and attorneys may also be subject to debarment if they 

participated in the employer’s violation, but only if they are within the 

United States. 426 See also H-2A and H-2B Visa Programs: Increased Protections Needed for 

Foreign Workers, supra note 403, at 28-29.
56 | ANNUAL REPORT TO CONGRESS JUNE 2016

in many cases serves as an underlying reason that compels 

the worker to stay in bondage.

Human Trafficking and Victims of Certain Crimes 

Victims of human trafficking may seek humanitarian relief 

by applying for T nonimmigrant visa status.427 T applicants 

must show they are a victim of a severe form of trafficking 

in persons, which includes “the recruitment, harboring, 

transportation, provision, or obtaining of a person for labor 

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

the purpose of subjection to involuntary servitude, peonage, 

debt bondage, or slavery (emphasis added).” 428

Victims of certain qualifying crimes, including human 

trafficking and a workplace-based crime, may also seek U 

nonimmigrant status.429 U visa petitioners must show they 

have suffered “substantial” physical or mental abuse from 

the qualifying criminal activity.430 USCIS considers several 

factors when determining whether an applicant has suffered 

substantial physical or mental harm.431 No single factor is 

a prerequisite and together, a series of acts may rise to the 

level of “substantial” abuse.432

The Ombudsman has received examples of RFEs and 

petition denials where the agency failed to recognize 

that multiple minor labor violations could collectively 

constitute “substantial” abuse or amount to involuntary 

servitude or debt-bondage. Additionally, stakeholders 

report receiving boilerplate RFEs and denials from USCIS 

that allegedly demonstrate USCIS is not consistently 

applying the preponderance of the evidence legal standard 

in adjudicating claims of substantial abuse.433 The 

Ombudsman has raised these concerns with USCIS and 

intervened in those cases, as appropriate. 

427 8 C.F.R. § 214.11; USCIS Form I-914, Application for T Nonimmigrant Status

(Jul. 29, 2014); https://www.uscis.gov/sites/default/files/files/form/i-914.pdf

(accessed Mar. 10, 2016). 428 22 U.S.C. § 7102(9)(B); see also 8 C.F.R. § 214.11(a). 429 8 C.F.R. § 214.14; USCIS Form I-918, Petition for U Nonimmigrant Status, 

(Jan. 15, 2013); https://www.uscis.gov/sites/default/files/files/form/i-918.pdf

(accessed Mar. 10, 2016). 430 INA § 101(a)(15)(U)(i)(I). 431 8 C.F.R. § 214.14(a)(8). 432 8 C.F.R. § 214.14(b)(1). 433 Information provided through requests for case assistance.

Over the past year, the VSC, which adjudicates petitions for 

protection submitted by victims of workplace-based crimes 

and labor trafficking, has initiated adjudicator training 

focused on the link between workplace based crimes and 

labor trafficking, and has sought additional training from 

non-profit organizations on this topic.434 USCIS has also 

shared that it is developing new U and T visa petition 

guidance for its adjudicators.435

In FY 2015, USCIS’ inventory of received and pending T 

and U nonimmigrant status applications and petitions from 

victims was over 31,000.436 Increasingly, those applications 

and petitions involve workplace-based crimes or labor 

trafficking. According to the GAO’s review, from fiscal 

years 2009 through 2013, 49 H-2A and 137 H-2B workers 

obtained T visas. Men comprised almost 90 and 75 percent 

of H-2A and H-2B victims granted T visas, respectively.437

GAO also found in calendar years 2012 and 2013 that DOJfunded service providers assisted 340 workers who were 

identified as victims of human trafficking in typical H-2 

industries,438 and over 93 percent of these workers were 

reported to be victims of labor trafficking or workplacebased violence.439

The Ombudsman will continue to review how USCIS 

can collaborate with federal agency partners to address 

employee exploitation and human trafficking by 

participating in interagency efforts to strengthen protections 

for foreign workers. In addition, the Ombudsman 

will convene DHS representatives to discuss how to 

enhance protections within the Department’s authorities. 

Stakeholders should continue to provide the Ombudsman 

examples of questionable RFEs or denials related to 

workplace-based crimes, labor trafficking, or abscondments. 

434 Information shared by VSC during Ombudsman site visit (June 5, 2016). 435 Public meeting with ILWRG hosted by DOL, supra note 412. 436 USCIS Report to Congress, “Annual Report on Immigration Applications 

Made by Victims of Abuse—Fiscal Year 2015.” 437 See also H-2A and H-2B Visa Programs: Increased Protections Needed for 

Foreign Workers, supra note 403, at 74. 438 See infra “H-2B Temporary Non-Agricultural Workers—Program 

Developments and Challenges” of this Report (reporting “[t]he majority 

of U.S. employers that petition for H-2B nonimmigrant workers are found 

in landscaping, hospitality, horse racing, traveling carnivals, forestry, and 

seafood processing industries.”) 439 See also H-2A and H-2B Visa Programs: Increased Protections Needed for 

Foreign Workers, supra note 403, at 36-37.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 57

H-2B Temporary 

Non-Agricultural Workers—

Program Developments 

and Challenges 

Responsible USCIS Office: Service Center 

Operations Directorate

Recent regulatory and legislative developments have 

exacerbated conditions affecting both employers and 

employees contributing to an overall increase, at least 

temporarily, in H-2B processing delays. Stakeholders 

have reported an increase in the number of RFEs, denials, 

and NOIRs challenging the nature of the temporary labor 

need. More specifically, USCIS has questioned the “dates 

of need” stated by employers in petitions with the same 

“dates of need” that were approved in prior years by both 

DOL and USCIS. USCIS posted to its website guidance 

previously shared with the service centers clarifying 

“statement of need” and the evidence required to meet one 

of the standards of temporary need.440

Since 2014, the Ombudsman has hosted interdepartmental 

meetings with the three principal federal agencies involved 

in the H-2 program administration: DOL, USCIS, and 

DOS. These meetings provide the operational components 

an opportunity to cross-train, share information, and discuss 

opportunities for program improvement.

Background

The H-2B program permits U.S. employers to hire foreign 

workers on a temporary, seasonal basis for nonagricultural 

positions where there is a shortage of able, willing, 

and qualified domestic workers to perform the work 

needed.441 The majority of U.S. employers that petition for 

H-2B nonimmigrant workers are found in landscaping, 

hospitality, horse racing, traveling carnivals, forestry, and 

seafood processing industries. 

Congress set a numerical limit (or cap) on the total number 

of foreign workers to whom the Federal Government may 

issue an H-2B visa or grant H-2B status during a fiscal 

440 USCIS Webpage, “H-2B Clarifying Guidance” (Mar. 25, 2016); https://www.

uscis.gov/working-united-states/temporary-workers/h-2b-non-agriculturalworkers/h-2b-clarifying-guidance (accessed Apr. 2, 2016). 441 See INA § 101 (a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(6)(ii).

year.442 The statutory limit is 33,000 for workers who begin 

employment in the first half of the fiscal year (October 1 to 

March 31) and 33,000 for workers who begin employment 

in the second half of the fiscal year (April 1 to September 

30), totaling no more than 66,000 in each fiscal year.443 The 

DHS Appropriations Act of 2016 (Public Law 114-113) 

exempted “returning” H-2B temporary workers from the 

annual visa cap,444 provided they previously held H-2B 

status between October 1, 2012, and September 30, 2015.445

Under the current H-2B program process, before an 

employer files an H-2B petition with USCIS, it must apply 

for and receive a temporary labor certification for H-2B 

442 INA § 214(g)(1)(B), 214(g)(10). 443 USCIS Webpage, “H-2B Temporary Non-Agricultural Workers” (Feb. 5, 

2016); https://www.uscis.gov/working-united-states/temporary-workers/h-2btemporary-non-agricultural-workers (accessed Feb. 23, 2016). 444 Department of Homeland Security Appropriations Act, 2016, Pub. L. No. 114-

113, sec. 565, § 214(g)(9)(A), 129 Stat. 2242, 2523 (codified as amended at 8 

USC § 1184(g)(9)(A) (2016) by striking ‘‘2004, 2005, or 2006 shall not again 

be counted toward such limitation during fiscal year 2007.’’ and inserting 

‘‘2013, 2014, or 2015 shall not again be counted toward such limitation during 

fiscal year 2016.”). The annual cap exemption for returning workers is limited 

to FY 2016 and is set to expire on September 30, 2016. 445 USCIS Webpage, “H-2B Temporary Non-Agricultural Workers” (Feb. 5, 

2016); https://www.uscis.gov/working-united-states/temporary-workers/h-2btemporary-non-agricultural-workers#returning (accessed Feb. 29, 2016). The 

Department of Labor Appropriations Act of 2014, Pub. L. 113-76, § 113, 128 

Stat. 5, 362, also contained a provision permitting the “staggering” of workers. 

DOL, Office of Foreign Labor Certification, “2015 H-2B Interim Final Rule 

FAQs: Round 9: Staggered Crossing of H-2B Nonimmigrants Working in 

the Seafood Industry” (July 15, 2015); https://www.foreignlaborcert.doleta.

gov/pdf/H-2B_2015_IFR_FAQs_Round9.pdf (accessed Feb. 29, 2016). That 

provision has been continued in subsequent appropriations legislation. See, 

e.g., Department of Labor Appropriations Act, 2015, Pub. L. 113-235, § 108, 

128 Stat. 2130, 2464; Department of Labor Appropriations Act, 2016, Pub. L. 

No. 114-113, § 111, 129 Stat. 2242, 2599.
58 | ANNUAL REPORT TO CONGRESS JUNE 2016

workers from DOL.446 The employer then files Form I-129, 

Petition for a Nonimmigrant Worker with USCIS with 

the temporary labor certification.447 USCIS independently 

determines whether the employer’s needs are “temporary,” 

and whether all other regulatory requirements have been 

met. Once USCIS approves the petition, the foreign worker 

applies for an H-2B nonimmigrant visa at a U.S. Consulate 

or Embassy. DOS interviews the workers to determine 

admissibility, and to assess their awareness of the location 

and specific work they will perform. If deemed qualified 

and otherwise admissible, DOS issues H-2B visas to the 

foreign workers to apply for admission to the United States.

Ongoing Concerns

Since publication of the 2015 Annual Report, important 

regulatory and legislative actions have affected the H-2B 

program’s performance and, at least temporarily, resulted 

in H-2B processing delays at DOL, USCIS and DOS. On 

April 29, 2015, DOL and DHS jointly published the Interim 

Final Rule and Final Wage Rule governing the H-2B 

program process at DOL,448 which expanded recruitment 

procedures for U.S. workers, strengthened protections 

for all workers, and allowed for the continued but limited 

use of employer-provided prevailing wage surveys under 

certain conditions.449 The 2016 DOL Appropriations Act 

contained several provisions affecting the H-2B program 

including providing flexibility in the employment start date 

for H-2B seafood workers, permitting the use of employerprovided wage surveys, and redefining “temporary need.”450

DOL’s Office of Foreign Labor Certification (OFLC) 

experienced a 123 percent increase in H-2B application 

filings in the 3-week period from December 26, 2015 to 

January 15, 2016, compared to the same period the previous 

446 See 20 C.F.R. § 655; DOL Webpage, “H-2B Temporary Non-agricultural 

Program” (Feb. 25, 2016); https://www.foreignlaborcert.doleta.gov/2015_H2B_IFR.cfm (accessed Feb. 25, 2016); DOL Webpage, “H-2B Certification 

for Temporary Non-Agricultural Work” (Feb. 25, 2016); https://www.

foreignlaborcert.doleta.gov/h-2b.cfm (accessed Feb. 25, 2016). 447 See USCIS Webpage, “H-2B Temporary Non-Agricultural Workers” (Feb. 5, 

2016); https://www.uscis.gov/working-united-states/temporary-workers/h-2btemporary-non-agricultural-workers (accessed Feb. 29, 2016). 448 20 C.F.R. § 655 Subpart A; 8 C.F.R. § 214.2 (h)(6)(ii). 449 An employer-provided wage survey may be used as an alternative to the 

DOL’s Online Employment Wage Library, provided it meets certain criteria 

set forth in 20 C.F.R. § 655 Subpart A; 8 C.F.R. § 214.2 (h)(6)(ii). See

Ombudsman’s Annual Report 2015, pp. 35-39. 450 Department of Labor Appropriations Act, 2016, Pub. L. No. 114-113, §§ 111-

114, 129 Stat. 2242, 2599-2600.

year.451 These increases in filings led in turn to considerable 

delays, which were further exacerbated by “a 17-day 

certification processing pause at the Chicago National 

Processing Center needed for OFLC to implement changes 

to comply with the revisions to the H-2B prevailing wage 

and certification standards contained in the 2016 [DOL] 

Appropriations Law.”452 Additionally, on January 27, 2016, 

OFLC announced it was experiencing “technical problems 

with its electronic filing system, iCERT Visa Portal System, 

which resulted from the implementation of required IT 

security specifications.”453 DOL acknowledged these delays 

created backlogs that prevented employers from bringing in 

a temporary workforce by the requested “dates of need.”454

To address these problems, DOL invoked existing regulatory 

emergency procedures.455 The Ombudsman engaged USCIS 

to understand the agency’s capacity and plan to address 

the expected surge of filings likely to occur as a result of 

processing delays at DOL. 

The Ombudsman observed that while USCIS may have 

increased its corps of adjudicators available to process H-2 

petitions, some were not appropriately trained. Stakeholders 

complained USCIS issued RFEs and denials that revealed 

incorrect application of H-2B law and regulations. For 

example, adjudicators issued RFEs and denials in petitions 

where the employers regularly used the H-2B program 

each year for the same time period, finding erroneously that 

such regular use of temporary workers made the positions 

part of the employer’s regular workforce and a permanent, 

not temporary, need.456 On March 25, 2016, in part as a 

result of the work of the Ombudsman in bringing egregious 

RFE examples to the agency, USCIS issued “clarifying 

guidance” noting an increase in RFEs, “which often 

occurs as officers familiarize themselves with a new type 

of adjudication.”457 The issuance of these templated RFEs 

compounded DOL processing delays, resulting in financial 

hardship to employers unable to meet their temporary labor 

451 See OFLC Webpage, “H-2B Temporary Nonagricultural Visa Program, OFLC 

Emergency Processing Initiative for Backlogged H-2B Applications” (Feb. 

19, 2016); https://www.foreignlaborcert.doleta.gov/pdf/H-2B_EmergencyProcessing_Initiative.pdf (accessed Mar. 4, 2016). 452 Id. 453 Id. 454 Id. 455 Id. 456 Information provided through a request for case assistance. 457 H-2B Clarifying Guidance, supra note 440. 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 59

needs by the dates requested; the Ombudsman intervened in 

several such cases to ensure legally correct reviews.458

The Ombudsman will continue to monitor stakeholder 

concerns about the treatment of both employers and 

employees in the H-2B program to promote improved 

program functionality and address concerns of abuse. 

Additionally, the Ombudsman will continue to make 

recommendations, as appropriate, to promote more effective 

interagency communication and coordination to facilitate 

the lawful and timely entry of temporary workers into the 

United States.

Requests for Evidence 

Responsible Office: Service Center 

Operations Directorate

H-1B, L-1A, and L-1B Nonimmigrant Petitions 

As in previous years, the Ombudsman continues to 

monitor the rates at which RFEs are issued at the VSC 

and California Service Center (CSC) in three high-skilled 

nonimmigrant visa categories: H-1B (Specialty Occupation 

Workers), L-1A (Intracompany Transferee Managers and 

Executives) and L-1B (Specialized Knowledge Workers).459

The FY 2015 RFE rate for H-1B petitions at the CSC 

declined 10 percent from FY 2014, and is now aligned with 

the VSC rate, which also decreased slightly in FY 2015, to 

23 percent.460 By contrast, L-1A RFE data shows inverse 

trending between the CSC and the VSC. For example, 

CSC’s L-1A rates surged to 55 percent in FY 2015, its 

highest level in 20 years, while in the same period, VSC’s 

rate dropped dramatically from a high of 44.6 percent in FY 

2014, to 29 percent in FY 2015. The number of L-1B RFEs 

dropped in FY 2015 at both service centers, to 44 percent at 

the CSC and 33 percent at the VSC.

In the absence of any changes to the laws or regulations 

governing L-1As, or any evidence of a disparate application 

of policy, it is unclear why L-1A RFE rates differ so 

458 Information provided through a request for case assistance where USCIS 

issued a denial finding that the employer did not demonstrate a temporary 

need because the employer’s need for workers only during certain months 

constituted a regular, permanent need. The Ombudsman was able to have the 

decision reversed on the ground that USCIS misinterpreted the employer’s 

need to hire more workers for a specific short period of time as a permanent 

need rather than as a peakload need. 459 Ombudsman Annual Report 2015, pp. 39-41; Ombudsman Annual Report 

2014, pp. 21-23; Ombudsman Annual Report 2013, pp. 28-30. 460 Information provided by USCIS (Apr. 14, 2016).

significantly between USCIS service centers. With respect 

to L-1B petitions, although the agency issued draft L-1B 

guidance on March 24, 2015,461 it does not appear that RFE 

rates in FY 2015 were affected by this guidance, as it did not 

become final until August 17, 2015.462 The Ombudsman calls 

on USCIS to undertake careful examination of the disparities 

between service centers in processing these form types.

In Matter of Simeio, 26 I&N Dec. 542 (AAO 2015), the 

Administrative Appeals Office held petitioners must file 

an amended or new H-1B petition with the corresponding 

labor condition application (LCA) based on the agency 

announcement that the movement of an employee to a 

new work location that is outside the area of employment 

covered by the previous LCA constitutes a material 

change in the terms and conditions of employment. The 

impact of this precedent decision on H-1B RFE rates 

has not yet become apparent, as the agency’s guidance463

on how it would operationalize Simeio was not issued 

until late in FY 2015. At the Ombudsman’s Fifth Annual 

Conference, stakeholders contemplated a marked impact 

on employers in order to achieve compliance with Simeio, 

especially with respect to additional costs to prepare and 

file amended petitions.464 During the processing of these 

amended petitions, stakeholders reported receiving RFEs 

requesting information unrelated to the reason for filing the 

amendment, which resulted in a re-evaluation of the job 

opportunity or the foreign national’s qualifications.465

Ongoing Concerns

The FY 2015 RFE data in other employment-based 

nonimmigrant visa categories reveals high rates in 

two product lines at the VSC: O-1 (Individuals with 

Extraordinary Ability or Achievement), reported at 49 

percent, and P-1 (Internationally Recognized Athletes), 

461 USCIS Draft Policy Memorandum, “L-1B Adjudications Guidance,” PM602-0111 (Mar. 24, 2015); https://www.uscis.gov/sites/default/files/USCIS/

Outreach/Draft%20Memorandum%20for%20Comment/2015-0324-Draft-L1B-Memo.pdf (accessed May 18, 2016). 462 USCIS Policy Memorandum, “L-1B Adjudications Guidance,” PM-602-

0111 (Aug. 17, 2015); https://www.uscis.gov/sites/default/files/USCIS/

Laws/Memoranda/2015/L-1B_Memorandum_8_14_15_draft_for_

FINAL_4pmAPPROVED.pdf (accessed May 18, 2016). 463 USCIS Interoffice Memorandum, “The Significance of a Prior CIS Approval 

of a Nonimmigrant Petition in the Context of a Subsequent Determination 

Regarding Eligibility for Extension of Petition Validity” (Apr. 23, 2004); 

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

Static_Files_Memoranda/Archives%201998-2008/2004/readjud_042304.pdf

(accessed May 18, 2016). 464 Ombudsman 2015 Annual Conference (November 6, 2015). 465 Information from the Council for Global Immigration based on a survey 

provided to the Ombudsman on April 17, 2016. 
60 | ANNUAL REPORT TO CONGRESS JUNE 2016

which increased to 65 percent.466 Over the past 2 years, 

stakeholders have raised concerns about lengthening 

processing times for O-1 petitions, including the 

longstanding issue of USCIS’ requests for consultations 

from incorrect industry peer groups,467 particularly within 

the performing arts sector. The Ombudsman will engage the 

VSC to better understand the various factors that account 

for these elevated RFE rates. 

Stakeholders have speculated for years that USCIS engages 

in a pattern or practice of issuing RFEs in the final days of 

the 15-day Premium Processing period as a tactic to “stop 

the clock” on petitions to avoid having to issue a refund 

to petitioners if adjudication cannot be completed in time. 

The Ombudsman requested and reviewed H-1B RFE data 

within the Premium Processing line for FYs 2013 and 2014, 

segregated by service center and by day of issuance, to 

determine if a pattern could be detected.468

The data provided by USCIS clearly evidences that in FYs 

2013 and 2014, the VSC issued more RFEs than the CSC 

during the last 3 days of the Premium Processing period. 

However, the data also showed that very few RFEs were 

issued on day 15 at either service center. Further analysis 

of the aggregate data for FYs 2013 and 2014 provided 

additional insight into the occurrence and timing of RFEs 

at each service center. For example, the data revealed 

466 Information provided by USCIS (Apr. 14, 2016). 467 Information provided through requests for case assistance. See also, USCIS 

Webpage, “Listening Session on O and P Nonimmigrant Classifications” 

(Sept. 1, 2010); https://www.uscis.gov/outreach/notes-previous-engagements/

notes-previous-engagements-topic/employment-based-immigrant/listeningsession-o-and-p-nonimmigrant-classifications (accessed May 25, 2016). 468 Information provided by USCIS (Nov. 24, 2014 and May 21, 2015).

the highest 3 days of RFE issuance during the Premium 

Processing period by service center were as follows (a 

qualitative analysis of the RFEs was not conducted):469

Service Center Day of RFE Issuance

VSC

Day 14 (16%)

Day 13 (12%)

Day 9 (12%)

CSC

Day 7 (15%)

Day 6 (12%)

Day 8 (12%)

Analysis also disclosed that of the H-1B submissions filed 

Premium Processing in 2013 and 2014, the VSC issued a 

significant number of RFEs after the 16th day, with almost 

34 percent of RFEs being issues after the 16th day in FY 

2013, and almost 34 percent in FY2014; the CSC had 

much lower rates of 2 percent in FY 2013 and 6 percent in 

FY 2014.470

USCIS continues to issue significantly high rates of RFEs, 

particularly in L-1A, L-1B, O-1, and P-1 product lines. 

The Ombudsman will continue to monitor and engage 

USCIS on issues pertaining to the quality and frequency of 

issuance of RFEs, and call for more transparency regarding 

RFE rates, enhanced training on the preponderance of 

the evidence standard, and supervisory review to ensure 

appropriateness of issuance.

469 Id. 470 Id.

 

 

 

 

 

 

 

 

 

 

 

 

 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 61

Recommendation 

Update: Employment 

Authorization Documents

Responsible USCIS Offices: Service Center 

Operations Directorate and Office of Intake and 

Document Production 

In 2006, 2008, and 2011, the Ombudsman issued 

recommendations to address USCIS processing delays for 

EADs, including the issuance of multi-year EADs, more 

efficient processing and meeting regulatory timeframes, and 

minimizing the adverse impact of delays on individuals and 

employers.471 USCIS adopted certain recommendations in 

part, but did not acknowledge that EAD processing times 

were delayed.472

Since that time, the Ombudsman has seen requests for case 

assistance regarding EAD processing delays only increase. 

USCIS noted in 2009: “... unfortunately, there is a small 

percentage of applicants whose cases are not adjudicated 

timely, and we understand that this imposes a significant 

burden on them, but we respectfully disagree with the 

perception that EAD processing, as a whole, is a significant 

issue.”473 However, given that more than 2 million EAD 

applications were filed with the agency in FY 2015, missing 

the current 90-day regulatory adjudication timeframe by 

even one percent equates to as many as 20,000 customers 

suffering adverse consequences.474 The consequences 

include income interruption, loss of employment and 

471 Ombudsman Recommendation 25, “Recommendation to USCIS that it: 

1) begin issuance of multi-year Employment Authorization Documents; 

2) issue Employment Authorization Documents valid as of the date any 

previous issuance expires; and 3) amend the regulations such that K-1 

nonimmigrants are not subject to breaks in employment authorization” (Mar. 

20, 2006); Ombudsman Recommendation 35, “Recommendations on USCIS 

Processing Delays for Employment Authorization Documents” (Oct. 2, 2008); 

Ombudsman Recommendation 49, “Employment Authorization Documents: 

Meeting the 90 Day Mandate and Minimizing the Impact of Delay on 

Individuals and Employers” (July 18, 2011). 472 USCIS Response to Recommendation #25 (June 20, 2006); https://

www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_25_EAD_USCIS_

Response-06-20-06.pdf (accessed Mar. 29, 2016); USCIS Response to 

Recommendation #35 (Jan. 2, 2009); https://www.dhs.gov/xlibrary/assets/

uscis_response_to_cisomb_recommendation35_01_02_09.pdf (accessed Mar. 

29, 2016); USCIS Response to Recommendation #49 (Apr. 11, 2012); http://

www.gjpclaw.com/documents/Response-to-CISOMB-49.pdf (accessed Mar. 

29, 2016). 473 USCIS Response to Recommendation #35, supra note 472. 474 Information provided by USCIS (May 11, 2016).

related health insurance, and disruption or delay in receipt 

of other benefits. The number of adjudications that are 

completed beyond 90 days, discussed in more detail below, 

appear to be far higher than one percent. With a proposal 

to eliminate the 90-day processing requirement currently 

under consideration by the agency, timeliness remains a 

real concern for processing of this product line.475

Background

In the past, USCIS has informed customers they may file 

a Form I-765, Application for Employment Authorization

up to 120 days in advance of the expiration of their current 

EAD.476 By current regulation, USCIS must adjudicate 

most EADs within 90 days of receipt.477 Interim EADs are 

no longer issued by the agency, despite regulatory language 

allowing for that option after 90 days.478 Generally, USCIS 

issues an EAD with a validity period of 1 year,479 but 

some classes of individuals receive EADs in increments of 

2 years.480

Having a valid EAD in one’s possession is necessary 

for authorized employment but is also required for 

other reasons. In many states, a foreign national cannot 

obtain or renew a driver’s license without valid proof of 

authorized presence in the United States, and in many 

situations, an EAD card is the only proof available for this 

475 “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 

Improvements Affecting High-Skilled Nonimmigrant Workers,” Proposed 

Rules,” 80 Fed. Reg. at 81927-28. 476 USCIS Response to Recommendation #49 (Apr 11, 2012); http://www.

gjpclaw.com/documents/Response-to-CISOMB-49.pdf (accessed Mar. 29, 

2016). The Ombudsman has confirmed that USCIS will accept Form I-765 

applications submitted for adjudication greater than 120 days prior to the 

expiry date of the applicants’ prior card. Information provided by USCIS to 

the Ombudsman (Apr. 14, 2016). 477 8 C.F.R. § 274a.13(d). 478 USCIS Interoffice Memorandum, “Elimination of Form I-688B, Employment 

Authorization Card” (Aug. 18, 2006); https://www.uscis.gov/sites/default/

files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-

2008/2006/elimi688b_081806r.pdf (accessed Mar. 8, 2016). 479 See generally, USCIS Webpage, “Employment Authorization Document” 

(Oct. 25, 2011); https://www.uscis.gov/green-card/green-card-processes-andprocedures/employment-authorization-document (accessed Apr. 27, 2016). 480 USCIS Webpage, “USCIS to Issue Two-Year Employment Authorization 

Documents” (June 12, 2008), https://www.uscis.gov/archive/archive-news/

uscis-issue-two-year-employment-authorization-documents (accessed Apr. 

27, 2016); see generally USCIS Webpage “Who is eligible for an EAD that is 

valid for two years?”; https://my.uscis.gov/helpcenter/article/who-is-eligiblefor-an-ead-that-is-valid-for-two-years (accessed Apr. 4, 2016). 
62 | ANNUAL REPORT TO CONGRESS JUNE 2016

purpose.481 The validity period of the driver’s license in 

most states coincides with the validity period granted on 

an EAD when it has been used to establish eligibility.482

Additionally, EADs for certain classes of nonimmigrants 

are a prerequisite to obtaining a Social Security number 

and other federal, state and local benefits. While receiving 

an initial EAD is important to foreign nationals to establish 

their livelihoods in the United States, the EAD renewal is 

essential for foreign nationals to continue their employment 

in the United States without interruption.

To ameliorate the negative impacts of EAD adjudication 

delays, in 2008 and 2011 the Ombudsman recommended 

that USCIS: 

 Comply with the regulatory processing time;

 Issue interim EADs, as necessary;

 Issue multi-year EADs to more classes of applicants;483

 Establish a uniform processing time goal of 45 days to 

adjudicate Form I-765, issuing the EAD no later than 

the 60th day;

 Improve monitoring and ensure real-time visibility 

through an automated system for tracking processing 

times; and

 Issue replacement EADs with validity dates beginning 

on the date the prior EAD expired.484

In response to these recommendations, USCIS 

implemented procedures to identify applications that 

remain unassigned for adjudication more than 60 days after 

481 To obtain a valid driver’s license, many states accept an unexpired Form I-765 

to prove identity, authorized presence, or status. See, e.g., Virginia Department 

of Motor Vehicles Webpage, “Proof of Identity;” https://www.dmv.virginia.

gov/apps/documentbuilder/proof_of_identification.aspx (accessed May 

4, 2016); Georgia Department of Driver Services Webpage, “Renewal of 

Driver’s License or Identification Card” (Apr. 26, 2016); http://www.dds.

ga.gov/drivers/dldata.aspx?con=1742949265&ty=dl (accessed May 4, 2016); 

California Department of Motor Vehicles Webpage, “Birth Date Verification 

and Legal Presence Requirements;” https://www.dmv.ca.gov/portal/dmv/

detail/dl/dl_info#BDLP (accessed May 18, 2016). 482 See, e.g., Virginia Department of Motor Vehicles Webpage, “Virginia’s Legal 

Presence Law;” https://www.dmv.virginia.gov/drivers/#legal_presqa.asp

(accessed May 20, 2016); California Department of Motor Vehicles Webpage, 

“Limited Term Legal Presence;” https://www.dmv.ca.gov/portal/dmv/detail/dl/

dl_info#BDLP (accessed May 18, 2016). 483 Ombudsman’s Recommendation 35, supra note 474. Generally, individuals 

receive an EAD valid for 1 year. USCIS has implemented multi-year EADs 

for limited applicants. See generally 8 C.F.R. § 247a12(a) and (c); USCIS 

Webpage, “Employment Authorization Document” (Oct. 25, 2011); https://

www.uscis.gov/green-card/green-card-processes-and-procedures/employmentauthorization-document (accessed Apr. 19, 2016). 484 See Ombudsman Recommendation 49, supra note 471.

filing, and authorized the NCSC to accept a service request 

inquiry485 after day 75.486

Ongoing Concerns 

Despite the Ombudsman’s concerns, and the steps 

the agency has taken to address EAD adjudication 

delays, processing times beyond 90 days continue. The 

Ombudsman received data from USCIS regarding EAD 

completions from FY 2012 through 2015. FY 2015 data 

discloses that EAD adjudications after 90 days reached 

a troublesome 22 percent (449,307 filings).487 The 

Ombudsman has seen a corresponding upswing in EAD 

related requests for case assistance in the same timeframe. 

In this reporting period, the Ombudsman received 1,226 

requests for case assistance on EADs, representing 13 

percent of the Ombudsman’s overall caseload.488

While some delays are due to the customer’s failure to 

file timely or provide required documentation, other 

delays occur through no fault of the customer. This 

customer’s experience is typical of the delays the 

Ombudsman handles:

....[I]t is now 100 days to be exact [since filing]. This 

delay is affecting my employment process very much. 

My previous EAD expired on 03/24/15. My employer 

requested me to take an unpaid leave of absence as they 

could no longer continue the employment without the 

renewed EAD card. Therefore I have been on unpaid 

leave since then and experiencing severe financial 

difficulty due to this issue. I was verbally advised by 

my HR representative that I cannot continue working 

until I receive the actual physical EAD card.489

485 USCIS Response to Recommendation #35 , supra note 472. 486 SRMT is the USCIS system used to record and respond to a request for 

service for a variety of reasons. When the customer requests service by calling 

the NCSC toll - free telephone number, a SRMT is created by NCSC staff if 

the inquiry cannot be resolved during the call . While the NCSC generates the 

majority of SRMT requests, SRMTs are also initiated at local field offices. 

See USCIS Policy Manual, “Volume 1—General Policies and Procedures, 

Part A—Customer Service, Chapter 8—Service Request Management Tool 

(SRMT)” (Feb. 26, 2016); https://www.uscis.gov/policymanual/HTML/

PolicyManual-Volume1-PartA-Chapter8.html (accessed May 11, 2016). 487 Information provided by USCIS (May 11, 2016). 488 Information provided through requests for case assistance. The Ombudsman’s 

data does not include DACA related EAD applications. 489 Other cases demonstrate more egregious circumstances. In one such situation, 

an applicant (whose driver’s license was in jeopardy) had his case transferred 

from one service center to another just prior to the 90th day from its initial 

filing, then was forced to wait another 90 days for the application to reach 

resolution with the help of the Ombudsman. Information provided through 

requests for case assistance.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 63

The agency has proposed eliminating the 90-day processing 

time requirement “due to fraud and national security 

concerns, and in light of technological and process 

advances with respect to document production.”490 This 

proposal, if adopted, would be countered to some extent 

by the corresponding proposal to automatically extend 

certain EAD validity periods for up to 180 days upon 

the timely filing of a renewal application.491 USCIS 

provided no quantitative analysis of this measure, but 

acknowledged that such a move could “potentially lead 

to longer processing times whenever the agency is faced 

with higher than expected filing volumes,” which could 

lead in turn to “potential delays in work employment start 

dates for first-time EAD applicants....”492 The agency 

490 “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program 

Improvements Affecting High-Skilled Nonimmigrant Workers; Notice of 

Proposed Rulemaking,” 80 Fed. Reg. at 81928 (Dec. 31, 2015). 491 Id. at 81927. 492 Id. at 81932.

noted, however, that such situations would be “rare” and 

“mitigated” by the automatic extension provision, which 

would allow the agency to move resources where needed in 

EAD processing.493

Ongoing Plan of Action

Thousands of EAD applicants and their employers continue 

to be negatively impacted by the agency’s failure to timely 

adjudicate Form I-765. The proposed regulatory changes 

will not improve processing times absent allocation of 

significant resources to meet processing times goals. 

The Ombudsman continues to highlight EAD issues as a 

systemic issue, and will monitor and engage the agency as 

long as this matter remains unresolved.

493 Id.
64 | ANNUAL REPORT TO CONGRESS JUNE 2016

Family unification and immigrant integration are at the core 

of U.S. immigration. The Ombudsman observed a 68 percent 

increase in requests for case assistance involving naturalization 

applications. In March 2015, USCIS began making changes to 

the fee waiver form and process, culminating in a proposed rule 

expanding fee waiver eligibility for naturalization applicants. 

USCIS has increasingly used its parole authority to reunify 

families and address humanitarian emergencies. Military 

personnel are experiencing longer delays in the processing of 

their naturalization applications. The Ombudsman continues to 

observe processing delays with petitions to remove the condition 

on permanent resident status.

Families and Children
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 65

Barriers to Applying 

for Naturalization

Responsible USCIS Offices: Field Operations 

and Service Center Operations Directorates, and 

Office of Citizenship

As part of his Executive Actions, President Obama 

established the White House Task Force on New 

Americans (Task Force) to coordinate and strengthen the 

Federal Government’s efforts to help immigrants in the 

United States better integrate into their communities.494

Naturalization conveys to immigrants nearly all the same 

rights and responsibilities as native-born Americans. The 

sharing of these rights and responsibilities creates a sense 

of belonging and inclusion that fosters integration, making 

naturalization a key goal of the Task Force.

494 See White House Webpage, “White House Task Force On New Americans;” 

https://www.whitehouse.gov/issues/immigration/new-americans (accessed 

Mar. 14, 2016).

In addition to last year’s reforms, the agency recently 

issued an NPRM for a new fee schedule that included 

establishing a three-level fee for Form N-400, Application 

for Naturalization:

(1) The standard N-400 filing fee would increase from $595 

to $640 (an eight percent increase), and the biometrics 

fee would remain the same at $85.

(2) Applicants with household incomes below 150 percent 

of the Federal Poverty Guidelines pay no N-400 filing 

or biometrics fee.

(3) Applicants with family income greater than 150 percent 

and not more than 200 percent of the Federal Poverty 

Guidelines pay $320 (50 percent reduction) for the 

N-400 filing fee, and $85 for the biometrics fee. 495

The proposed third level is an expansion of the fee waiver 

system to increase access to naturalization for low-income 

495 “U.S. Citizenship and Immigration Services Fee Schedule,” 81 Fed. Reg. 

at 26934.
66 | ANNUAL REPORT TO CONGRESS JUNE 2016

eligible applicants. The applicant submits a newly proposed 

Form I-942, Request for Reduced Fee along with the 

naturalization application to apply for the reduced fee.496

Over 8 million permanent residents are eligible to apply 

for citizenship through naturalization.497 Most of them 

reside in California, Texas, New York, and Florida.498 A 

sizable number of citizenship-eligible legal permanent 

residents are elderly, poorly educated, or indigent.499 These 

vulnerable naturalization applicants face greater difficulty 

in applying for naturalization and meeting the qualifications 

to become U.S. citizens. 

Background

USCIS’ A Guide To Naturalization, available on its 

website, provides an overview of the steps to naturalization 

and eligibility requirements, which include submission of 

Form N-400 and required filing fees; undergoing a criminal 

background check and in-person interview; passing the 

English and civics tests, with some exceptions; and taking 

the oath of allegiance.500 See figure 5.1. The current filing 

fees to apply for citizenship are $595 for the N-400, and 

$85 for the biometric fee, which applicants 75 years old 

and older are not required to pay.501 USCIS may waive the 

application and biometric fees for applicants unable to pay 

the fees because their income is at or below 150 percent 

of the Federal Poverty Guidelines, or they are receiving 

a means-tested benefit, or have extraordinary expenses 

or other circumstances that cause financial hardship.502

As mentioned earlier in this article, USCIS has proposed 

increasing the N-400 fee by eight percent and expanding 

the fee waiver options.

496 Id. 497 Robert Warren and Donald Kerwin, “The US Eligible-to-Naturalize 

Population: Detailed Social and Economic Characteristics,” Journal on 

Migration and Human Security, vol. 3, no. 4 (2015), p. 306 (reporting 8.6 

million U.S. residents eligible to naturalize in 2013). See also Nancy Rytina, 

DHS Office of Immigration Statistics, “Estimates of the Legal Permanent 

Resident Population in 2012,” Population Estimates (July 2013), p. 1 

(reporting 8.8 million legal permanent residents in the United States eligible to 

naturalize). 498 Warren and Kerwin, supra note 497, at 31. 499 Id. at 315, 316. 500 See USCIS Webpage, “A Guide to Naturalization (M-476)” (Jan. 22, 2013); 

https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/guidenaturalization (accessed Mar. 30, 2016). 501 See USCIS Webpage, “Current Naturalization Fees (Form M-479)” (Jan. 28, 

2016); https://www.uscis.gov/files/form/m-477.pdf (accessed May 12, 2016). 502 See USCIS Policy Memorandum, “Fee Waiver Guidelines as Established 

by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s 

Field Manual (AFM) chapter 10.9, AFM Update AD11-26” (Mar. 13, 2011); 

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/

March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_

USCISFeeSchedule.pdf (accessed Mar. 15, 2016).

Naturalization applicants who are unable to satisfy the 

English or U.S. civics and history requirements due to 

physical or mental challenges may seek a waiver of one or 

both of these requirements by filing Form N-648, Medical 

Certification for Disability Exceptions.

503

Nearly 730,000 immigrants became naturalized U.S. citizens in 

FY 2015.504 According to USCIS data, it received over 202,000 

applications during the fourth quarter of FY 2015, a 14 percent 

increase from the same quarter in FY 2014.505

During this reporting period, USCIS received 851,554 

N-400 forms.506 During the same period, the Ombudsman 

received 562 requests for case assistance from N-400 

applicants—a 68 percent increase over the previous 

reporting period, making up the largest general form type 

for which requests were submitted. Four hundred fortyeight of the requests sought the Ombudsman’s assistance 

because applications remained pending beyond posted 

processing times. 

Prolonged Processing Times

Although the Department of Homeland Security 

Annual Performance Report (Fiscal Years 2015-2017) 

indicated USCIS met its 5-month processing time 

goal for naturalization in FY 2015 nationally,507 posted 

processing times are now longer than 5 months for all 

field offices except San Diego. See figure 5.2. Moreover, 

individual field offices show a wide range of problematic 

timeframes. The Ombudsman began raising the disparity 

in naturalization processing times among field offices as 

early as 2006.508

Nearly 80 percent of the naturalization-related requests 

received during this reporting period were applications 

pending beyond posted processing times. A sample of 

these requests reflects applicants waiting, on average, 

about 20.5 months to become citizens. These delays affect 

their ability to reunite with families, progress in their 

careers, and fully integrate into the community with all 

503 See A Guide to Naturalization (M-476), supra note 500. 504 USCIS Webpage, “Naturalization Fact Sheet” (Nov. 6, 2015); https://www.

uscis.gov/news/fact-sheets/naturalization-fact-sheet (accessed Mar. 29, 2016). 505 Compare USCIS Webpage, “USCIS Military and Non-Military Naturalization 

Form N-400 Performance Data (Fiscal Year 2014, 4th Qtr)” with “USCIS 

Military and Non-Military Naturalization Form N-400 Performance Data 

(Fiscal Year 2015, 4th Qtr);” https://www.uscis.gov/tools/reports-studies/

immigration-forms-data/data-set-form-n-400-application-naturalization

(accessed Mar. 31, 2016). 506 Information provided by USCIS (May 12, 2016). 507 DHS Annual Performance Report (Fiscal Years 2015-2017), p. 41; https://

www.dhs.gov/sites/default/files/publications/15-17-APR.pdf (accessed Mar. 

16, 2016). 508 Ombudsman’s Annual Report 2006, p. 6.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 67

the rights and responsibilities of an American citizen, such 

as participating in elections. In the case of certain eligible 

refugees, delays also disrupt Supplemental Security Income 

(SSI) payments.509

USCIS conducts a criminal investigation of all 

naturalization applicants that includes FBI fingerprint and 

name checks, 510 and an investigation into an applicant’s 

place of residence and employment.511 USCIS can take no 

further action on an applicant’s application for naturalization 

until the background check process is complete.512

USCIS has informed the Ombudsman during site visits that 

waiting for the results of background checks from the FBI 

is causing processing delays for applicants.513 FBI’s goal is 

509 See “Supplemental Security Income (SSI) for Noncitizens” (Sept. 2015); 

https://www.ssa.gov/pubs/EN-05-11051.pdf (accessed May 11, 2016). 510 USCIS Policy Manual, Volume 12—Citizenship & Naturalization, Part BNaturalization Examination, ch 2—Background Check and Security Checks 

(Feb. 25, 2016); https://www.uscis.gov/policymanual/Print/PolicyManualVolume12-PartB-Chapter2.html (accessed Apr. 14, 2016); See generally supra

“Background Checks and Clearance” of this Report. A USCIS district director 

can waive the latter investigation. 8 C.F.R. § 335.1. 511 8 C.F.R. § 335.1. 512 USCIS Policy Manual, Volume 12—Citizenship & Naturalization, Part B—

Naturalization Examination, ch 2—Background Check and Security Checks, 

supra note 510. 513 Information provided by USCIS (Jan. 13-14, 2016).

to return fingerprint and name check results in 30 days 90 

percent of the time, and it is meeting this goal 93 percent 

of the time.514 For the applicants who fall outside the goal, 

adjudication of their applications takes much longer than 

5 months. Thirty-two percent of the 562 naturalization 

applicants who requested the Ombudsman’s assistance 

have experienced delays due to background checks, often 

waiting over a year for them to be completed.515

The delays do not necessarily translate into denials. A 

sampling of USCIS actions on 44 naturalization-related 

requests pending on the Ombudsman’s maintained list of 

long-pending cases indicated the agency resolved 31 of the 

cases, or 70 percent, by granting naturalization.516 USCIS 

received most of the applications in this sample between 

calendar years 2012 and 2014.

Another cause for processing delays is the cancellation of 

naturalization interviews, which is not always the fault of 

the applicant. The NBC reviews the evidence submitted 

to show eligibility for naturalization, conducts the 

background and security checks, and gathers the applicant’s 

immigration file before forwarding the application packet 

514 Information provided by USCIS (Apr. 2016). 515 Information provided through requests for case assistance. 516 Information provided by USCIS (Mar. 10, 2016).

 
68 | ANNUAL REPORT TO CONGRESS JUNE 2016

and file to the local field office that will adjudicate the 

application.517 Generally, NBC schedules the interview and 

notifies the applicant of the date, time, and location of the 

interview.518 If the field office does not receive the complete 

file in time, then it will cancel the interview, which can take 

months or even years to reschedule.519

Delays also occur in the scheduling of the oath ceremony—

the last step to become a naturalized citizen—resulting 

from a lack of capacity in some jurisdictions (especially 

those that have chosen to forego or limit administrative 

swearings-in),520 and the need to repeat background checks 

that have expired during the pendency of the application.521

[Applicant] has not been scheduled for a Naturalization 

Oath Ceremony since his N-400 application was 

approved over five months ago. We have contacted 

USCIS numerous times...but have been told that 

Naturalization Oath Ceremony appointment time cannot 

be scheduled due to unavailability.522

In 2008, the Ombudsman studied naturalization ceremonies 

and provided recommendations on how USCIS could 

address challenges in conducting the naturalization 

oath ceremony.523 Currently, of the 83 USCIS local field 

offices, only 31 have the ability to perform administrative 

ceremonies.524 USCIS can and often does schedule 

applicants’ interviews and oath ceremonies on the same 

day, which has proven to be successful in many USCIS 

field offices. The courts have elected to maintain exclusive 

authority to administer the oath of allegiance, affecting 

63 percent of the field offices, which gives USCIS less 

flexibility to quickly accommodate changes in demand. 

517 USCIS Webpage, “10 Steps to Naturalization (M-1051)” (Sep. 2012); https://

www.uscis.gov/sites/default/files/USCIS/files/M-1051.pdf (accessed May 

15, 2016); See also USCIS blog The Beacon, “The National Benefits Center: 

What It Is and What It Does” (June 5, 2012); http://blog.uscis.gov/2012/06/

national-benefits-center-what-it-is-and.html (accessed May 21, 2016). 518 Information provided by USCIS (Apr. 14, 2016). 519 Information provided through request for case assistance; 10 Steps to 

Naturalization (M-1051), supra note 517 (stating “[r]escheduling an interview 

may add several months to the naturalization process[.]”). 520 See USCIS Response to Recommendation #37, p. 3 (Mar. 27, 2009); https://

www.dhs.gov/sites/default/files/publications/cisomb/uscis_response_cis_

ombudsman_recommendation_37.pdf (accessed Mar. 31, 2016) (responding a 

surge in naturalization applications in 2007 led to a 63 percent increase in the 

number of applicants taking the oath of allegiance from FY 2007 to FY 2008. 

The “increased demand for services, coupled with the already demanding 

schedule of court judges, made scheduling oath ceremonies challenging.”) 521 USCIS Policy Manual, Volume 12—Citizenship & Naturalization, Part B—

Naturalization Examination, ch 2—Background Check and Security Checks, 

supra note 510. 522 Information provided through request for case assistance. 523 Ombudsman Recommendation 37, “Study and Recommendations on 

Naturalization Oath Ceremonies” (Dec. 16, 2008). 524 Information provided by USCIS (Apr. 2016).

The Ombudsman recognizes that, absent a change in law, 

USCIS is limited in its ability to manage oath ceremonies 

to meet demand in jurisdictions where the court maintains 

exclusive authority. For jurisdictions where courts do not 

retain exclusive authority, the Ombudsman encourages 

USCIS district directors to assess their naturalization 

volume to creatively address the needs of the community, 

implementing local models that best serve applicants, 

increase efficiency, and allow USCIS to meet its 

processing goals. 

All these delays undermine efficacy, causing the USCIS 

Customer Service Directorate, Congressional offices, and 

the Ombudsman to expend time and resources to resolve 

processing delays.

Naturalization of Vulnerable Populations

Based on the Center for Migration Studies’ analysis of 

the U.S. Census Bureau’s American Community Survey 

in 2013, of those eligible to naturalize at that time, 1.16 

million did not speak English; 3 million had not attended or 

completed high school; 1.8 million lived below the poverty 

line; and slightly over 1.23 million were at least 65 years 

old.525 Vulnerable populations—the elderly, less educated, 

or poor—face barriers to acquiring citizenship that are 

exacerbated by USCIS practices. Policy or procedural 

changes, or both, may help address the concerns presented. 

USCIS instructs its officers to “provide professional and 

courteous service at all times and be fair and consistent 

in the treatment of all USCIS customers.”526 Stakeholders 

reported that elderly applicants often feel “intimidated 

and are nervous” during their naturalization interviews.527

Another stakeholder expressed concern to the Ombudsman 

for the “lack of sensitivity training with USCIS officers” 

toward applicants with significant mental illnesses.528

Stakeholders have also relayed to the Ombudsman that the 

cost of applying for naturalization is a barrier to starting the 

525 Warren and Kerwin, supra note 497, at 308, 499. 526 USCIS Consolidated Handbook of Adjudication Procedures, vol. 12, ch. 2, 

part J. (Mar. 17, 2016); http://connect.uscis.dhs.gov/workingresources/CHAP/

Pages/HTML/CHAP-Volume12-PartE-Chapter2.aspx#S-A (accessed Apr. 27, 

2016). 527 Information provided to Ombudsman during stakeholder engagement in 

Denver (Feb. 2016). 528 Information provided to Ombudsman during stakeholder engagement in 

Miami (Feb. 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 69

naturalization process.529 USCIS accepting credit cards to pay 

the filing fees, while convenient, does not benefit the millions 

of permanent residents who still cannot afford the fees.

In addition, the Ombudsman continues to be concerned 

with the adjudication and processing of fee waiver 

requests.530 USCIS is more likely to reject or deny fee 

waiver requests based on insufficient income despite 

the inclusion of credible documents, compared to those 

submitted based on a means-tested benefit.531 During 

529 Information provided to Ombudsman during stakeholder engagement in 

Denver (Feb. 2016). See also U.S. Citizenship and Immigration Services 

Fee Schedule, 81 Fed. Reg. at 26916-17 (USCIS justifies limiting N-400 fee 

increase to eight percent, and estimates the number of applicants who would 

be eligible to pay proposed option of fifty percent of the new N-400 fee). 530 Ombudsman’s Annual Report 2015, pp. 66-69; see generally infra “Fee 

Waiver Processing Update” of this Report for more on the fee waiver process 

and challenges faced by applicants. 531 See infra “Fee Waiver Processing Update” of this Report.

stakeholder engagements, legal representatives stated they 

are submitting fee waiver requests three to five times for 

the same applicant and application before USCIS finally 

approves it.

These processing inefficiencies discourage legal services 

providers, whose resources are already limited, from assisting 

applicants with income-based fee waivers. They also prevent 

low-income applicants from applying for the benefits they 

could otherwise obtain, including naturalization. 

The recently proposed reduced naturalization filing fee 

for applicants with household incomes greater than 150 

percent and not more than 200 percent of the Federal 

Poverty Guidelines may address economic barriers 

impeding some eligible naturalization applicants from 

seeking citizenship. Providing a reduced fee to applicants 

could promote naturalization, especially if the fee is lower 

than the cost to renew an expiring green card. Failure to 

address longstanding problems and inefficiencies in the 

adjudication of income-based fee waivers will, however, 

diminish the effectiveness of offering a partial fee waiver.

Fee Waiver Processing Update

Responsible USCIS Offices: Office of Intake and 

Document Production, Field Operations and Service 

Center Operations Directorates

Stakeholders report fee waiver processing and adjudication 

issues continue to negatively impact individuals who wish 

to apply for immigration benefits. Absent clarification of 

eligibility guidelines or a simplified process, lower income 

and indigent applicants and petitioners will continue to 

experience problems seeking immigration benefits for 

which they are eligible. 

Background

USCIS conducts a fee review every 2 years “to determine 

whether it is recovering its costs to administer the nation’s 

immigration laws, process applications and provide the 

infrastructure needed to support those activities.”532 Fees 

also support important humanitarian efforts, such as the 

asylum program, where no fee is requested. The complex 

budgetary needs of the agency must include an accurate 

532 USCIS News Release, “U.S. Citizenship and Immigration Services Seeks 

Public Comment on Proposal to Adjust Fees for Immigration Benefits” (June 

9, 2010); http://www.prnewswire.com/news-releases/us-citizenship-andimmigration-services-seeks-public-comment-on-proposal-to-adjust-fees-forimmigration-benefits-95960454.html (accessed Mar. 14, 2016).

Figure 5.2: Ten Field Offices with the Longest Form 

N-400 Processing Times*

Processing Time Field Office 

10 months 

St. Louis, MO 

Cincinnati, OH 

Washington, DC

St. Paul, MN

9 months 

Jacksonville, FL

Des Moines, IA

Long Island, NY

Harlingen, TX

Norfolk, VA

Pittsburgh, PA

Ten Field Offices with the Shortest Form N-400 

Processing Times

Processing Time Field Office 

4 months San Diego

7 months

Boise, ID

Charlotte, NC

Cleveland, OH

Columbus, OH

Detroit, MI

Fresno, CA

Hartford, CT

Helena, MT

Hialeah, FL 

* The processing time is the age of the most recent case the office completed as calculated in May 2016, and rounded to the nearest month. 

The processing time for Chula Vista, CA was not available on the website.

Source: USCIS Webpage, “USCIS Processing Time Information” (as of Feb. 29, 2016; 

last updated Apr. 28, 2016); https://egov.uscis.gov/cris/processTimesDisplayInit.do

(accessed May 10, 2016).
70 | ANNUAL REPORT TO CONGRESS JUNE 2016

assessment of all applications and petitions submitted, and 

not just those accompanied by a fee. USCIS maintains 

that: “[w]aiving a fee for one applicant transfers the cost 

of processing their application to other applicants through 

higher fees.”533

While the number of individuals needing a waiver may not 

be predictable, the method of evaluating fee waiver requests 

should be. The agency’s standardization of the fee waiver 

process, including the development of Form I-912, Request 

for Fee Waiver and accompanying Policy Memorandum,534

has gone a long way to achieving consistency. In March 

2015, USCIS published a notice of proposed revisions 

to Form I-912 that greatly expanded the form, doubling 

the length and adding additional instructions.535 While 

USCIS published the required Federal Register notices, 

it did not advertise the substantial amendments planned 

for the form. As a result, the 2015 proposed revisions 

were not informed by stakeholder concerns in the same 

way that input had been used to develop the initial form 

in 2010.536 At the urgent request of the Ombudsman537 as 

well as the stakeholder community, in May and June 2015, 

USCIS extended the reporting period for comments on the 

proposed Form I-912, accepting comments until July 17, 

2015.538 Although additional time for comments allowed 

stakeholders to weigh in on the proposed form, concerns 

about the fee-waiver adjudication process and the updated 

Form I-912 persist. 

Ongoing Concerns

On May 3, 2016, USCIS posted an updated version of 

Form I-912, dated April 25, 2016.539 The new form more 

than doubles the length of the previous version; the revised 

form and instructions together now total 22 pages.540

533 USCIS Webpage, “Fee Waiver Guidance” (May 10, 2013); https://www.uscis.

gov/feewaiver (accessed Mar. 14, 2016); page cached and available at https://

www.regulations.gov/#!documentDetail;D=USCIS-2010-0008-0126. 534 Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee 

Schedule: Revisions to the AFM Chapter 10.9, AFM Update AD11-26, supra

note 502. 535 “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); see also Ombudsman’s Annual Report 2015, 

p. 66. 536 E-mail from CLINIC to USCIS (May 8, 2015) (on file with the Ombudsman). 537 Letter from the Ombudsman to USCIS Director Leon Rodriguez, May 20, 

2015. 538 “Agency Information Collection Activities; Request for Fee Waiver; Form 

I-912; Request for Fee Exemption; Revision of a Currently Approved 

Collection; Revision,” 80 Fed. Reg. 34687 (Jun. 17, 2015). 539 USCIS Webpage, “I-912, Request for Fee Waiver” (May 3, 2016); https://

www.uscis.gov/i-912 (accessed May 11, 2016), 540 Id.

Additionally, the new form requires more supporting 

documentation than the old form and adds five pages of 

attestations, requiring detailed information on the requestor, 

each family member, the interpreter, and the preparer.541

Initial review of the new Form I-912 indicates that, while 

some improvements were made as a result of the comments 

received from the public, the form still reflects many 

concerning changes. 

On May 4, 2015, USCIS published an NPRM for a new 

fee schedule, proposing increases with a weighted average 

of 21 percent, and a partial fee waiver for certain lowincome naturalization applicants.542 By comparison, the 

last fee increase in 2010 raised overall fees by a weighted 

average of ten percent.543 Fee increases inevitably impact 

access to immigration benefits for low-income and indigent 

applicants and petitioners. Higher fees affect their ability to 

renew work authorization documents, reunite with family 

members, and naturalize, among other consequences. 

At the same time, as the agency balances the needs of 

this population, it must take into account operational 

and resource constraints that impede progress in backlog 

reduction and service delivery across fee-funded and 

non-fee-funded application product lines. As a result, and 

with a proposed fee rule in progress, the fee waiver criteria 

remains subject to revisions. 

Rejection notices lack sufficient specificity. Stakeholders 

continue to report that denial notices provide insufficient 

guidance as to the inadequacies of the request.544 USCIS’ 

failure to provide the reasons for denying a request 

prevents customers and legal representatives from making 

corrections that would lead to success in future requests. 

As a result, applicants often become discouraged and give 

up on the underlying applications, lacking resources to 

move forward without a waiver.545 Customers who do refile 

fee waiver requests do not often succeed because they do 

not know why the previous submission was deficient.546

In addition, other customers continue to submit the same 

application multiple times, wasting the time and resources 

of the applicant and USCIS. 

541 Id. 542 U.S. Citizenship and Immigration Services Fee Schedule, 81 Fed. Reg. 

at 26904. 543 “U.S. Citizenship and Immigration Services Fee Schedule, Final Rule,” 75 

Fed. Reg. 58962 (Sep. 24, 2010). 544 Letter from DePaul College of Law, Asylum and Immigration Law 

Clinic to USCIS (May 28, 2015); https://www.regulations.gov/

document?D=USCIS-2010-0008-0121 (accessed May 23, 2016) and Letter 

from Asian Americans Advancing Justice, Los Angeles to USCIS (May 28, 

2015); https://www.regulations.gov/document?D=USCIS-2010-0008-0120. 545 Information provided by stakeholders (Feb. 17, 2016). 546 Id.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 71

Confusing and inconsistent instructions. Requests for 

case assistance received by the Ombudsman during the 

2016 reporting period show common sources of confusion 

for waiver applicants. For example, while some applicants 

cannot qualify for federal or state means-tested benefits due 

to ineligibility as a result of their immigration status, their 

children’s ability to qualify for such benefits can be shown 

as evidence of the family’s financial situation. Applicants 

often do not realize, however, the agency takes the position 

that their children’s eligibility for a means-tested benefit 

does not qualify them for a fee waiver; the applicant must 

also be receiving the benefit or must use another ground in 

order to qualify for the fee waiver.547

When applying for a fee waiver based on income that is at 

or below 150 percent of the Federal Poverty Guidelines, 

some customers do not know that the agency requires them 

to list a spouse’s income, even if the spouse is not living 

with the applicant or is living outside of the United States. 

Additionally, it can be difficult to document income for 

spouses living overseas in countries where the available 

technology and document requirements are different 

from those available in the United States. Applicants may 

alternatively provide a detailed explanation as to why 

they cannot provide the information, but anticipating what 

constitutes a sufficient explanation can be difficult.548

Adding a layer of complexity: The N-400. Form N-400 is 

one of the most common forms for which applicants request 

a fee waiver.549 A large number of eligible applicants for 

naturalization are eligible for a fee waiver.550 Even with 

the assistance of legal services providers, low-income and 

indigent applicants often face challenges when navigating 

the current fee waiver request process. Legal service 

providers in the charitable sector often deal with repeated 

rejections for qualified applicants, which impose a heavy 

administrative, and often financial, burden and serves as 

a disincentive to both providers and applicants alike from 

pursuing naturalization.551 Similarly, stakeholders believe a 

more straightforward process would reduce the amount of 

547 See USCIS Webpage, “Additional Information on Filing a Fee Waiver;” 

https://www.uscis.gov/feewaiver (accessed May 11, 2016). See also

information provided through requests for case assistance. 548 Information provided through requests for case assistance. 549 Information provided by USCIS (Apr. 26, 2016). 550 Warren and Kerwin, supra note 497, at 313-314, 318. 551 A stakeholder that routinely prepares fee waiver requests for applicants 

seeking immigration benefits informed the Ombudsman that it regularly 

refers applicants with more complex, income-based fee waiver requests to 

other legal service providers better equipped to handle such requests. While 

regretting the additional burden this places on applicants, the stakeholder lacks 

the time and resources needed to address those fee waiver applications in 

house. Information provided by stakeholder (June 8, 2016).

time and effort needed to train staff and volunteers to assist 

at small- and large-scale naturalization workshops, as well 

as the amount of time volunteers need to guide applicants 

through the fee waiver process.552

DHS recognizes the importance of fee waivers for 

naturalization applicants.553 In November 2014, DHS 

Secretary Johnson asked USCIS to take steps “to address 

barriers that may impede [access to naturalization].”554

These steps included the development of a partial fee 

waiver for naturalization applicants “whose income is 

more than 150% and no greater than 200% of the federal 

poverty level, or a scaled adjustment to the fee based on 

a range of income levels[,]” to be included “as part of the 

next biennial fee study.”555 The NPRM published on May 

4, 2016 includes a proposal for a reduced fee waiver for 

552 Letter from CLINIC to USCIS (May 28, 2015); https://www.regulations.

gov/#!documentDetail;D=USCIS-2010-0008-0117 (accessed May 23, 2016). 553 See, e.g., Memorandum from Jeh Charles Johnson, DHS Secretary, to León 

Rodríguez, USCIS Director, “Policies to Promote and Increase Access to 

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

publications/14_1120_memo_naturalization.pdf (accessed May 10, 2016). 

(“The President believes [USCIS] should explore options to promote and 

increase access to naturalization and to consider innovative ways to address 

barriers that may impede such access, including for those who lack resources 

to pay application fees.”); U.S. Citizenship and Immigration Services Fee 

Schedule, 81 Fed. Reg. at 26915 (DHS has determined U.S. citizenship 

“deserves special consideration given the unique nature of this benefit to 

the individual applicant, the significant public benefit to the Nation, and the 

Nation’s proud tradition of welcoming new citizens”), citing “U.S. Citizenship 

and Immigration Services Fee Schedule; Notice of Proposed Rulemaking,” 75 

Fed. Reg. 33446, 33461 (June 11, 2010). 554 Policies to Promote and Increase Access to U.S. Citizenship, supra note 553. 555 Id.

Request for Case Assistance: Fee Waiver Denials

An applicant who had received status based on a feeexempt immigration application applied three times to 

waive the fee on a Form I-131, Application for Travel 

Document. Form I-131 does not, however, qualify for a fee 

waiver, except in cases of humanitarian parole (which was 

not the benefit sought by the applicant). The applicant did 

not understand this and desperately sought to obtain a 

refugee travel document to visit his sick mother overseas. 

The initial rejection notice did not indicate the fee waiver 

was not available for the type of form he was filing. The 

applicant’s mother died while he awaited a response to 

his third request for a fee waiver. Had USCIS provided an 

adequate explanation to the applicant in response to his 

first submission, he may have sought other resources to 

timely apply for and be issued a travel document. 
72 | ANNUAL REPORT TO CONGRESS JUNE 2016

“those non-military naturalization applicants with family 

incomes greater than 150 percent and not more than 200 

percent of the Federal Poverty Guidelines.”556

The Ombudsman supports the expansion of the fee waiver 

program through the development of a reduced fee waiver 

but remains concerned the deficiencies in the current program 

will hinder the success of an expanded reduced fee waiver 

program for naturalization applicants. Stakeholder feedback 

indicates waivers based on income at or below 150 percent 

of the Federal Poverty Guidelines are the most likely to be 

rejected or denied despite apparent eligibility.557 To ensure 

proper administration of the fee waiver program, USCIS 

should revise and streamline the adjudication process as 

the program currently stands. Clearer guidelines and more 

consistent adjudication of Form I-912 would give low income 

and indigent naturalization applicants the potential means 

to acquire citizenship, while also benefitting the public and 

maintaining the United States’ welcoming tradition. 

The updated fee waiver form will have a negative impact, 

particularly on pro se applicants for whom the new 

form may serve as a deterrent.558 Rather than adding 

to the burden, the agency should focus on clarifying 

and simplifying the overall fee waiver application 

process and train adjudicators on its own eligibility 

guidance to achieve quality and consistency in fee 

waiver adjudications. The Ombudsman recommends 

USCIS improve its outreach with stakeholders to seek 

additional feedback on fee waiver issues. Additionally, 

the Ombudsman urges USCIS to cite specific deficiencies 

in denial notices to prevent both unnecessary re-filings as 

well as unnecessary re-adjudications. 

556 U.S. Citizenship and Immigration Services Fee Schedule, 81 Fed. Reg. 

at 26934. 557 Information provided by stakeholders. 558 Letter from CLINIC to USCIS, supra note 552.

The Changing Landscape 

of Parole

Responsible USCIS Offices: Field Operations, 

Service Center Operations, and Refugee, Asylum 

and International Operations Directorates

Parole authority has been increasingly used in the past 

few years to reunify families, address humanitarian 

emergencies, support circumstances justified by significant 

public benefits, and facilitate international travel for 

business and educational purposes.559 The Ombudsman 

encourages the use of parole consistent with statutory 

parameters to accomplish these and related goals.

559 These include deferred inspection parole, advance parole, port-of-entry parole, 

humanitarian parole, public interest parole, overseas parole, military parole 

in place, Cuban Family Reunification Parole, Haitian Family Reunification 

Parole, the CAM Refugee/Parole Program, Criminal Parole Prosecution, and 

Conditional Parole. 

Request for Case Assistance: Multiple Rejections 

A legal services provider assisting an adjustment 

applicant sought to base a fee waiver request on the 

applicant’s receipt of a state-sponsored, means-tested 

benefit. The applicant submitted a state-issued healthcare 

membership card to show receipt of the benefit. USCIS 

rejected the fee waiver request, despite having found the 

same type of membership card sufficient for other fee 

waiver requests. The provider ultimately acquired and 

submitted a letter from the state agency attesting to the 

applicant’s benefit and indicating how long the current 

benefit period would last, along with additional documents 

showing eligibility for the waiver. In spite of the newly 

submitted evidence, USCIS denied the request a second 

time. The provider discussed the case with a USCIS 

Customer Service Supervisor and an Infopass Officer; both 

thought the package was sufficient and recommended 

that the provider note, “Attention Supervisor: DO NOT 

REJECT” be added to the package. The application was 

re-submitted, and USCIS, again, denied the request. The 

provider then contacted the Ombudsman. With the help of 

the Ombudsman, on the fourth attempt USCIS accepted 

the application with a backdated acceptance date.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 73

Background

Parole is temporary permission to enter the United States 

based upon urgent humanitarian reasons or significant public 

benefit.560 Parole does not constitute admission; parolees 

remain applicants for admission who are required to depart 

the United States when the conditions supporting parole 

cease to exist, unless they have alternative means to remain 

in the United States.561 Many types of parole exist, and DHS 

shares parole authority among USCIS, ICE, and CBP.562

CBP exercises parole authority at ports of entry, including 

deferred inspection.563 That agency also has authority to 

grant parole for both urgent humanitarian reasons and 

significant public benefit. ICE exercises parole authority 

over law enforcement-related requests as well as requests 

from individuals who have been removed, placed in 

removal proceedings (including expedited removal), or 

have a final order of removal. USCIS exercises parole 

authority for individuals both inside and outside the United 

States who have not previously been placed in removal 

proceedings (including expedited removal), or do not 

have a final order of removal. USCIS reviews requests for 

advance parole, military parole in place, and humanitarian 

parole, as well as focused parole such as the HFRP and 

CAM programs.564

Identified Issues

Long-Delayed Advance Parole Guidance: Matter of 

Arrabally and Yerrabelly. Advance parole is permission 

granted to qualified foreign nationals currently residing 

within the United States to allow them to return after 

temporarily traveling abroad.565 Foreign nationals 

commonly request advance parole when they file Form 

I-485, Application to Register Permanent Residence or 

560 INA § 212(d)(5)(A); 8 C.F.R. § 212.5. 561 INA § 212(d)(5); 8 C.F.R. § 212.5(e) (2015). 562 DHS Memorandum of Agreement, “Memorandum of Agreement Between 

USCIS, ICE, and CBP for the purpose of Coordinating the Concurrent 

Exercise by USCIS, ICE, and CBP, of the Secretary’s Parole Authority Under 

INA § 212(d)(5)(A) with Respect to Certain Aliens Located Outside of the 

United States” (Sept. 2008); https://www.ice.gov/doclib/foia/reports/paroleauthority-moa-9-08.pdf (accessed Apr. 12, 2016). 563 CBP Webpage, “Deferred Inspection;” http://www.cbp.gov/contact/deferredinspection/overview-deferred-inspection (accessed Apr. 25, 2016) (Deferred 

inspection is a form of parole used when CBP cannot make an immediate 

decision concerning the immigration status of an arriving traveler at the port 

of entry. An individual may be paroled into the United States on a case-bycase basis to report to a Deferred Inspection Site at a future date for that 

determination). 564 USCIS Webpage, “Humanitarian Parole” (Aug. 17, 2015); https://www.uscis.

gov/humanitarian/humanitarian-parole (accessed Mar. 10, 206). 565 8 C.F.R. § 212.5(f). 

to Adjust Status with USCIS. If an applicant departs the 

United States while an I-485 application is pending without 

first obtaining advance parole, the application will be 

denied as abandoned, unless the applicant fits into a narrow 

exception for those maintaining certain categories of 

nonimmigrant status.566

In 2012, the Board of Immigration Appeals (BIA) held 

in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 

(BIA 2012) a foreign national who has left and returned to 

the United States under a grant of advance parole has not 

made a “departure ... from the United States” within the 

meaning of section 212(a)(9)(B)(i)(II) of the INA, thus not 

triggering the 3- and 10-year bars to admission.567 In 2014, 

DHS Secretary Johnson instructed DHS General Counsel 

to issue guidance to clarify 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 section 212(a)(9)(B)(i) 

of the INA.568 As the Ombudsman is finalizing this report, 

DHS has not issued this guidance.

Military Parole in Place. Parole in place is discretionary 

permission granted to a foreign national physically present 

in the United States without lawful admission.569 USCIS 

has implemented parole in place guidance for spouses, 

children, and parents of active-duty, reserve, and guard 

members of the Armed Forces of the United States. The 

spouse, child, or parent of a service member requests parole 

in place from the USCIS office with jurisdiction over their 

566 8 C.F.R. § 245.2(a)(4)(ii). Effective February 25, 2016, new guidance in 

the USCIS Policy Manual provides information on the general policies and 

procedures for adjustment of status to legal permanent residence. See USCIS 

Policy Manual, “Adjustment of Status Policies and Procedures” (Feb. 25, 

2016); https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-

PartA.html (accessed Apr. 12, 2016). 567 See supra “Provisional Waivers” of this Report for a more detailed discussion 

of the 3- and 10-year bars to admission and waivers thereof. 568 DHS Memorandum, “Directive to Provide Consistency Regarding 

Advance Parole” (Nov. 20, 2014); https://www.dhs.gov/sites/default/files/

publications/14_1120_memo_arrabally.pdf (accessed Mar. 10, 2016). 569 USCIS Policy Manual, “Volume 7—Adjustment of Status, Part B—245(a) 

Adjustment, Chapter 2—Eligibility Requirements” (Feb. 25, 2016); https://

www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartBChapter2.html#S-A (accessed May 19, 2016). See also DHS Memorandum, 

“Families of US Armed Forces Members and Enlistees” (Nov. 20, 2014); 

https://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_

in_place.pdf (accessed Mar. 10, 2016). 
74 | ANNUAL REPORT TO CONGRESS JUNE 2016

place of residence.570 Upon a grant of parole, the family 

member may subsequently apply to adjust to U.S. legal 

permanent resident status upon filing of a Form I-485.571

Without parole in place, military family members would 

need to leave the United States to apply for immigrant 

visas abroad, with potential issues of inadmissibility and 

disruption in status. This disruption negatively impacts 

service-member and family readiness.572

Parole in Place: Need for a Streamlined Process. The 

Ombudsman has raised with USCIS the need for consistent 

processing and published processing times for parole in 

place.573 In this reporting period, the Ombudsman received 

requests for case assistance from military parole in place 

applicants who have prior removal orders or otherwise fall 

under ICE jurisdiction.574 In these cases, ICE has denied 

the requests for parole in place and declined to defer its 

parole authority to USCIS. Unlike USCIS, ICE does not 

have a military parole in place policy. The lack of ICE 

guidance creates inconsistent implementation of DHS 

support for military families, a stated DHS objective.575

The Ombudsman will continue to assist military families 

with parole in place requests with USCIS, and facilitate 

communication with ICE to adopt consistent treatment in 

line with USCIS’ policy. 

Humanitarian Parole: Need for Process and Adjudicatory 

Improvements. Humanitarian parole, which USCIS grants 

sparingly, permits an individual to enter the United States 

for a temporary period due to a compelling emergency.576

570 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, 

2016) (describing how an individual requests parole in place). 571 USCIS Policy Manual, Volume 7—Adjustment of Status, Part B—245(a) 

Adjustment, Chapter 2—Eligibility Requirements, supra note 569 (“If DHS 

grants parole before the foreign national files an adjustment application, 

the foreign national meets the ‘inspected and paroled’ requirement 

for adjustment.”). 572 INA § 212(a)(9)(i), (ii). See also Ombudsman’s Annual Report 2015, p. 31. 573 Information provided at the Ombudsman Annual Conference 2015, “The 

Changing Landscape of Parole” (Nov. 5, 2015). 574 Information provided through requests for case assistance. 575 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 

Mar. 10, 2016). 576 INA § 212(d)(5); 8 C.F.R. § 212.5; information provided by USCIS (Apr. 

8, 2016). HAB received 1,957 requests for humanitarian parole during this 

reporting period, of which 31 percent were approved, 46 percent denied, and 

23 percent remained pending). 

The Humanitarian Affairs Branch (HAB) of USCIS’ 

International Operations Directorate has a small staff 

adjudicating all requests for humanitarian parole.577

When adjudicating applications, HAB conducts a twopart analysis:

(1) Has an urgent humanitarian reason or a significant 

public benefit been established?

(2) Does the applicant merit approval as a matter 

of discretion? 578

In FY 2015, HAB received 1,837 parole requests, most of 

which were based on family emergencies or reunification.579

While USCIS’ internal target processing time for these 

requests is 90 days, the actual processing time varies 

substantially. Each case is reviewed as it comes in and the 

most urgent are prioritized.580

All HAB decisions and RFEs receive 100 percent 

supervisory review.581 In contrast, most USCIS adjudicatory 

offices only conduct random spot-checks and supervisory 

review for new adjudicators’ decisions. In FY 2015, USCIS 

received 40 percent more humanitarian parole requests than 

in the previous year, and approved more parole requests 

than in previous years.582 In FY 2015, USCIS approved 34 

percent of parole requests, while in prior years it approved 

only 25 percent of parole requests.583

USCIS maintains applicants must exhaust all other 

means of legal entry before it will consider a request for 

humanitarian parole; parole cannot be used to circumvent 

normal visa processing.584 USCIS may make an exception 

in a time-sensitive situation, such as emergency surgery, 

where an applicant does not have adequate time to pursue 

other ways to enter the United States.

Stakeholders raised concerns that the humanitarian parole 

application process lacks standard processing times and 

adjudicators often produce generic denials providing little 

577 Information provided at the Ombudsman Annual Conference 2015, “The 

Changing Landscape of Parole” (Nov. 5, 2015). 578 See also USCIS Webpage, “Humanitarian Parole,” (Aug. 17, 2015); https://

www.uscis.gov/humanitarian/humanitarian-parole (accessed Mar. 10, 2016). 579 Information provided at the Ombudsman Annual Conference 2015, “The 

Changing Landscape of Parole” (Nov. 5, 2015). 580 Information provided by USCIS (Apr. 8, 2016). 581 Information provided at the Ombudsman Annual Conference 2015, “The 

Changing Landscape of Parole” (Nov. 5, 2015). 582 Id. 583 Id. 584 Humanitarian Parole, supra note 578. Information provided by USCIS at the 

2015 Ombudsman Annual Conference “The Changing Landscape of Parole” 

(Nov. 5, 2015). 
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 75

or no information on how the applicant failed to meet the 

criteria or why USCIS denied the application as a “matter 

of discretion.”585 HAB recently reported that it is exploring 

ways to include in the denial notice the reasons for the 

denial.586 USCIS also plans to describe specific types 

of evidence that should be included with a Form I-131, 

Application for Travel Document, based on the type of 

parole sought, but USCIS has provided no specific timeline 

for implementation of these modest reforms.587

Specialty Parole. USCIS introduced and implemented 

several new family reunification initiatives from 2014 to 

2016, which included HFRP,588 Filipino WWII Veterans 

Parole,589 and CAM Parole.590 The programs were modeled 

after the long-standing Cuban Family Reunification Parole 

(CFRP) program.591 Unlike other parole programs, both 

CFRP and HFRP have appropriated funds that pay for 

benefits for individuals paroled into the United States.592

Ombudsman Recommendation: U Visa Parole Program. 

The Ombudsman has just issued a formal recommendation 

asking USCIS to exercise its statutory authority to 

implement parole for eligible petitioners located abroad 

who are waiting to receive a U visa.593 Eligible petitioners 

residing outside the United States experience extreme 

uncertainty, not only stemming from the criminal activity 

that led to the U petition approval, but also from the fact 

that they often face difficult and dangerous conditions 

abroad.594 USCIS already has regulations stating that U visa 

petitioners will be paroled into the United States.595 USCIS 

issues parole on a case-by-case basis, but the individual 

nature of these requests, evaluated under the requirements 

for parole, make for inconsistent and inefficient treatment 

585 Information provided by stakeholders at the Ombudsman Annual Conference 

2015, “The Changing Landscape of Parole” (Nov. 5, 2015). 586 Id. 587 Id. 588 See supra The Haitian Family Reunification Parole Program” of this Report. 589 “Filipino World War II Veterans Parole Policy; Notice,” 81 Fed. Reg. 28097 

(May 9, 2016). 590 See supra “Central American Minors Refugee/Parole Program” of this Report. 591 “The Cuban Family Reunification Parole Program” (Apr. 21, 2015); https://

www.uscis.gov/humanitarian/humanitarian-parole/cuban-family-reunificationparole-cfrp-program (accessed May 5, 2016) (USCIS announced the creation 

of the CFRP program in 2007). 592 USCIS Webpage, “Cuban Haitian Entrant Program” (Nov. 11, 2015); https://

www.uscis.gov/humanitarian/humanitarian-parole/cuban-haitian-entrantprogram-chep (accessed Mar. 29, 2016). 593 “Parole for Eligible U Visa Principal and Derivative Petitioners Residing 

Abroad,” (June 16, 2016); https://www.dhs.gov/publication/ombudsmanrecommendation-parole-eligible-u-visa-principal-and-derivative-petitioners 

(accessed June 20, 2016). 594 See Ombudsman’s Annual Report 2015, p. 65. 595 See 8 C.F.R. § 214.14(d)(2) (“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”).

of these petitioners. A U visa parole policy would ensure 

timely family reunification, provide a more transparent 

and efficient process to the public, reduce duplicative 

adjudication efforts, and ultimately further regulatory and 

statutory goals. 

Military Immigration Issues 

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates

Members of Congress and U.S. military leaders have long 

emphasized the need to assist individuals in the Armed 

Forces of the United States and their family members with 

immigration matters. Military naturalization, regularization 

of military dependent immigration status, and preserving 

military family unity are essential to military readiness. 

The Ombudsman strongly supports USCIS’ efforts to 

meet the needs of members of the U.S. military and their 

family members.

Background

The Ombudsman has previously commented on various 

USCIS military programs, such as Military Naturalization 

at Basic Training, parole in place, specialized customer 

service, and expedited processing. These special programs 

were implemented to support the unique needs of military 

members and their families.596 The Ombudsman continues 

to work on a wide range of requests for case assistance from 

military service members and their dependents, including 

naturalization applications outside processing times, 

adjudication issues with parole in place requests, and requests 

to expedite the adjudication of fiancé/spouse petitions due to 

upcoming deployments or permanent changes of duty stations.

Ongoing Concerns

Recent delays in N-400 Processing. The statutory 6-month 

processing timeframe for military-related naturalization 

applications ended in 2013, but the applications are still 

subject to the 5-month internal processing time goal for 

all naturalizations.597 In FY 2015, USCIS conducted 4,756 

naturalizations for military service-members.598 However, 

596 See Ombudsman’s Annual Report 2015, pp. 29-32; Annual Report 2011, pp. 

19-21; Annual Report 2010, pp. 63-66; 2009, pp. 37-39; and Annual Report 

2008, p. 58. 597 Military Personnel Citizenship Processing Act, Pub. L. No. 110-382, sec. 4, 

122 Stat. 4089 (2008) (codified as amended at INA § 328(g)). 598 Information provided by USCIS (April 20, 2016). 
76 | ANNUAL REPORT TO CONGRESS JUNE 2016

requests for case assistance to the Ombudsman during the 

reporting period indicate that USCIS is not completing 

some military-related naturalization applications during 

the Naturalization at Basic Training initiative, and these 

applications remain pending outside the 5-month processing 

goal for all naturalization applications.599 During the first 5 

months of FY 2016, the Ombudsman received three times 

as many requests for case assistance from military service 

members experiencing delays in the processing of their 

N-400 applications, as compared with all of FY 2015.600

USCIS conducts investigations of all naturalization 

applicants that include FBI fingerprint and name checks 601

and investigations into the applicants’ place of residence 

and employment.602 While USCIS expedites investigations 

for military service members, the FBI checks may only 

be expedited in the case of a service member with an 

impending military deployment.603 All investigations must 

be completed before USCIS can schedule an applicant for a 

naturalization interview.604

Delays in processing background checks with the FBI

are also preventing USCIS from adjudicating N-400 

applications for eligible military members while they are 

still in basic training, as promised.605 When USCIS does 

not complete processing during basic training, immigration 

files must be transferred to multiple field offices in tandem 

with the ever-changing duty stations for requisite post-basic 

trainings and assignments.

While USCIS field offices diligently work to mitigate 

processing delays in naturalization applications by 

599 At some field offices, processing times for naturalization applications for 

military applications are longer than those for non-military. Information 

provided by USCIS (May 12, 2016). 600 During FY 2015, the Ombudsman received ten requests for case assistance 

related to pending or delayed N-400 applications from service members. 

From October to December 2015, the Ombudsman received 31 requests for 

assistance relating to pending or delayed N-400 applications from service 

members. 601 USCIS Policy Manual, Volume 12—Citizenship & Naturalization, Part B—

Naturalization Examination, ch 2—Background Check and Security Checks, 

supra note 510. See also supra section “Background Checks and Clearances” 

of this Report. 602 See INA § 335(a); 8 C.F.R. § 335.1. 603 USCIS Update, “USCIS Clarifies Criteria to Expedite FBI Name Check” 

(Feb. 20, 2007); http://www.legalactioncenter.org/sites/default/files/docs/lac/

lac_mandamus_USCISrelease.pdf (accessed May 15, 2016). See also The 

Federal Bureau of Investigation, “Name Checks FAQs;” https://www.fbi.gov/

stats-services/name-checks/name-checks-faqs (accessed May 15, 2016). 604 See USCIS Policy Manual, Volume 12—Citizenship & Naturalization, Part 

B—Naturalization Examination, ch 2—Background Check and Security 

Checks, supra note 510. 605 USCIS Webpage, “Naturalization Through Military Service: Fact Sheet” 

(Nov. 6, 2015); https://www.uscis.gov/news/fact-sheets/naturalizationthrough-military-service-fact-sheet (accessed Apr. 26, 2016).

communicating with USCIS military liaison officers, the 

agency has no control over the FBI background checks and 

can take no action on an application until the background 

check process is complete. These delays undermine the 

purpose of USCIS’ “Naturalization at Basic Training” 

initiative. Delays also affect military readiness because 

soldiers are unable to deploy with their units abroad or 

obtain security clearances necessary to their jobs.606

The Ombudsman will continue to monitor processing 

delays, provide assistance to service members, and liaise 

with USCIS and the FBI to identify opportunities to address 

and mitigate delays. 

Recommendation Update: 

Petitions to Remove 

Conditions on Residence

Responsible USCIS Offices: Field Operations and 

Service Center Operations Directorates

Background

The Ombudsman published recommendations to improve 

USCIS’ processing of Form I-751, Petition to Remove 

Conditions on Residence on February 28, 2013,607 which 

606 Generally, a noncitizen serving in the U.S. military is ineligible for a security 

clearance and cannot serve in any job that requires one, including military 

linguist, thus affecting the service member’s ability to support an assigned 

unit. See generally Exec. Order No. 12968, 60 Fed. Reg. 40245, 40250 (Aug. 

7, 1995) (providing, except in certain circumstances, employee must be a 

United States citizen to be eligible for access to classified information). 607 Ombudsman Recommendation 56, “Improving the Process for Removal of 

Conditions on Residence for Spouses and Children” (Feb. 28, 2013). 

Request for Case Assistance: Military Naturalization

An Army Reservist enlisted more than a year ago as a lawful 

permanent resident.  She was not naturalized at Basic 

Combat Training or at Advanced Individual Training.  As a 

result, USCIS had to transfer her file among three different 

duty stations within a 6-month period. After her third duty 

station reassignment, the service member contacted the 

Ombudsman for assistance. While USCIS could not move 

her case forward until background checks cleared, the 

Ombudsman coordinated to have her case file transferred 

to where she is now stationed after a 3-month wait.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 77

addressed ineffective notice to petitioners and their legal 

representatives, inefficient processes and inconsistent 

adjudications, and insufficient training of USCIS officers.608

Specifically, the Ombudsman recommended USCIS 

provide timely, effective and accurate notice to petitioners 

concerning their status; ensure up-to-date and complete 

information for I-751 adjudications is available; and train 

officers to apply proper guidance and procedures with 

an emphasis on waivers, as well as provide an initial 

review process whereby district offices determine whether 

transferred I-751 cases were approvable without interview 

and report back their findings to the service center.609

USCIS Response to the Ombudsman’s 

Recommendations 

On July 10, 2013, USCIS responded to the Ombudsman’s 

recommendations, concurring in part with the 

recommendations and outlining the following steps it had 

taken or would be taking as a result:610

 Making a technical fix to allow service centers to 

obtain the conditional permanent resident’s address 

from the AR-11 change of address information system; 

 Updating the Marriage Fraud Amendment System 

(MFAS) so that copies of notices were being printed for 

the petitioner as well as the attorney; 

 Transitioning to an online, centralized manual of 

immigration policies to include information for 

Form I-751 adjudications and ultimately replace the 

Adjudicators Field Manual (AFM); and 

 Working with DHS Office for Civil Rights and Civil 

Liberties to strengthen safe address protections for 

spouses seeking protection under the VAWA, as well 

as T and U nonimmigrant categories, and incorporate 

these procedures into the centralized policy manual. 

Several steps are predicated on the deployment of USCIS 

Transformation, which has been substantially delayed.611

As a result, the expectation that Form I-751 processing 

608 See Ombudsman Annual Report 2013, p. 24. 609 Ombudsman Recommendation 56, “Improving the Process for Removal of 

Conditions on Residence for Spouses and Children” (Feb. 28, 2013). 610 USCIS Response to Recommendation #56 (July 10, 2013); https://www.

dhs.gov/sites/default/files/publications/Response_to_CISOMB_I-751_

Recommendation_Signed_7-10-13.pdf (accessed Apr. 1, 2016). 611 See supra “Transformation Update: E-Filing for Immigration Benefits 

Expands” of this Report.

would be transitioned to Transformation by July 2015 did 

not occur. 

Ongoing Concerns

Despite improvements in the processing and adjudication 

of petitions to remove conditions on residence, stakeholders 

continue to express concerns with processing delays. 

During the reporting period, the Ombudsman received 213 

requests for case assistance concerning Form I-751, an 

increase of almost 30 percent over the previous reporting 

period, 182 of which remained pending outside normal 

processing times. 

During the reporting period, the average service center 

processing time for Form I-751 was 7 months at VSC and 

6.25 months at the CSC.612 For petitioners whose cases 

are transferred to field offices for interview, obtaining a 

decision can take even longer because the service center 

processing times do not reflect the time it takes to transfer 

I-751 petitions to local field offices for adjudication and to 

conduct in-person interviews when necessary. Moreover, 

field office processing times for this product line are not 

posted by the agency.613

In FY 2015, service centers transferred 20,871 Form I-751 

petitions to local field offices for further adjudication. Of the 

88 offices that received them, 71 offices (or 87.5 percent) 

were processing petitions outside the agency’s 3-month 

goal.614 Depending on the field office’s caseload, petitioners 

generally must wait 1 to 22 months from the time of filing 

for their interviews to be scheduled.615 Because processing 

times at the field offices are not posted, petitioners are 

unable to gauge how long the process will take to schedule 

their interviews or adjudicate their petitions. 

612 See USCIS Webpage, USCIS Processing Time Information, https://egov.uscis.

gov/cris/processTimesDisplayInit.do (accessed Apr. 14, 2016). Form I-751 

petitions are filed with the VSC or CSC. See INA § 216(c). 613 Information provided by USCIS (Apr. 14, 2016) indicates an average 

processing time at the field offices of 6.8 months, and a goal of 3 months. 

Ordinarily, the petitioner and U.S. citizen or permanent resident spouse are 

required to appear at a local USCIS field office for an interview. USCIS may 

waive the interview, if the petitioner has included sufficient documentation 

showing eligibility for the removal of the conditionality with the Form I-751. 

See 8 C.F.R. § 216.4(a)(5) and (b). See also USCIS Interoffice Memorandum, 

“Revised Interview Waiver Criteria for Form I-751, Petition to Remove the 

Conditions on Residence” (June 24, 2005); https://www.uscis.gov/sites/ 

default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives% 

201998-2008/2005/crintwaivr062405. pdf; (accessed on Mar. 15, 2016). 614 Information provided by USCIS (Apr. 14, 2016 and Apr. 22, 2016). 615 See AILA/USCIS Field Operations Liaison Q&As (Oct. 22, 2015); https://

www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20

Previous%20Engagements/PED-Field_Ops_Agenda_October_2015_Cleared.

pdf (accessed Apr. 4, 2016).
78 | ANNUAL REPORT TO CONGRESS JUNE 2016

Delays in adjudication cause substantial problems for 

petitioners and their families because USCIS does not 

provide them with sufficient documentation of their 

lawful status.616 Some petitioners are unable to pursue 

job opportunities because they are reluctant to seek 

employment with an expired green card and a receipt notice 

referencing a 1-year extension of status, or obtain or renew 

drivers’ licenses or in-state college tuition. A petitioner 

must attend an Infopass appointment at a local USCIS field 

office to obtain a stamp showing their continued conditional 

permanent residence status. 

The Ombudsman strongly urges USCIS to acknowledge 

that longstanding issues in the processing of I-751 

petitions persist, and to implement the recommendations 

616 Upon filing Form I-751, VSC or CSC issues a receipt notice to the petitioner 

that extends the conditional residency period for 1 year. The petitioner may 

use the receipt notice, together with the expired green card, to show continued 

work authorization and permission to travel while the I-751 petition is 

pending. USCIS does not automatically issue additional 1-year extensions. 

See USCIS Policy Memorandum, “Extension of Status for Conditional 

Residents with Pending Forms I-751, Petition to Remove Conditions on 

Residence” (Dec. 2, 2003); https://www.uscis.gov/sites/default/files/USCIS/

Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2003/

crextensn120203.pdf (accessed on Mar. 15, 2016). 

made in 2013. The Ombudsman will continue to monitor 

USCIS processing delays of petitions filed by conditional 

permanent residents, and engage with USCIS on expanding 

the publication of processing times at local field offices, 

as well as completing I-751 adjudications within 1 year 

of receipt. As the Ombudsman recommended, timely 

notification to conditional permanent residents, agency 

guidance, and training for officers will afford USCIS 

the opportunity to renew its commitment to delivering 

quality service to families. In addition, waiving interviews 

in certain cases would enable USCIS to allocate more 

resources to petitions requiring closer scrutiny, while 

streamlining processing to avoid the consequences of 

lengthy delays.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 79

Recommendations Update

In conformity with statutory requirements, the Ombudsman makes formal recommendations to the USCIS Director. The 

agency has 3 months to respond in writing.

During Ombudsman Odom’s tenure, between September 2012 and March 2016, the Ombudsman issued six formal 

recommendations to improve USCIS’ service and responsiveness. The agency took action on some of the recommendations, 

and has not implemented others. 

Recommendation No. 60—Parole for Eligible U Visa Principal and Derivative Petitioners Residing Abroad617

(June 16, 2016); USCIS Response (pending)

Recommendation No. 59—Ensuring Process Efficiency and Legal Sufficiency in Special Immigrant Juvenile 

Adjudications618 (December 11, 2015); USCIS Response (April 19, 2016) 

 Centralize SIJ adjudications in a facility whose personnel are familiar with the sensitivities surrounding the adjudication 

of humanitarian benefits for vulnerable populations: USCIS concurs with the recommendation and will centralize the 

processing of Forms I-360 and I-485 based on an approved SIJ petition at the NBC. 

 Take into account the best interests of the child when applying criteria for interview waivers: USCIS plans to refer 

cases for interview only when it is necessary to secure information through an in-person assessment. It will consider 

input on interview criteria from the Office of Policy and Strategy, FDNS, and the Office of Chief Counsel.

 Issue final regulations that fully incorporate all statutory amendments: USCIS plans to issue clarifying policy guidance 

through the USCIS Policy Manual in 2016. In addition, USCIS plans to publish a final rule on SIJ in October 2016. 

 Interpret consent function consistently with the statute by according greater deference to state court findings. USCIS 

stated it does not expressly consent to state juvenile court orders. However, it will continue to review the state court 

order to determine whether the applicant has met eligibility requirements for SIJ classification.

Recommendation No. 58—Improving the Quality and Consistency in Notices to Appear 

(June 11, 2014); USCIS Response (September 30, 2016)

 Provide additional guidance for Notice to Appear (NTA) issuance with input from ICE and EOIR: USCIS has 

implemented this recommendation through certain policy guidance.

 Require USCIS attorneys to review NTAs prior to their issuance and provide comprehensive legal training: USCIS 

did not concur with the recommendation to have USCIS attorneys review all NTAs prior to issuance because it did not 

have sufficient data on the number of NTAs issued incorrectly. The Ombudsman continues to support a focus on legal 

sufficiency in NTA training for USCIS staff. 

 Create a working group with representation from ICE and EOIR to improve tracking, information sharing, and 

coordination of NTA issuance: USCIS has not yet implemented this recommendation.

617 See supra “The Changing Landscape of Parole” of this Report for more on this recent recommendation. 618 See supra “Recommendation Update: Special Immigrant Juveniles” of this Report for more on USCIS’ actions and stakeholders’ concerns.

Appendices
80 | ANNUAL REPORT TO CONGRESS JUNE 2016

Recommendation No. 57—Employment Eligibility for Derivatives of Conrad State 30 Program Physicians 

(March 24, 2014); USCIS Response (June 24, 2014)

 Publish new regulations that permit independently eligible J-2 dependents of J-1 physicians approved for a Conrad 

State 30 program waiver to change to other employment-authorized nonimmigrant classifications: USCIS disagreed 

that the INA permits J-2 dependents to change to another immigrant or nonimmigrant status, except T or U status. 

 Issue new policy guidance clearly explaining that J-2 visa holders, who are derivative beneficiaries of a Conrad State 

30 program waiver, may change to any nonimmigrant status for which they are otherwise qualified and eligible: USCIS 

disagreed that the INA permits J-2 dependents to change to another immigrant or nonimmigrant status, except T or U 

status.

Recommendation No. 56—Improving the Process for Removal of Conditions on Residence for Spouses and 

Children619 (February 28, 2013); USCIS Response (July 10, 2013)

 Provide timely, effective and accurate notice to petitioner(s) and their attorneys or accredited representatives on Form 

I-751 receipt, processing and adjudication requirements, and decisions: USCIS declined to create a system to ensure 

it properly conferred conditional permanent residence status because it believes the vast majority of those statuses are 

accurate. However, USCIS stated it would initiate a technical fix that would allow its service centers to extract the 

conditional permanent resident’s address from the AR-11 change of address information system. It also stated it would 

update the tracking system to print copies of notices for the petitioner as well as the attorney of record, and that it 

had revised the interview worksheet to more clearly articulate concerns with possible areas of focus for the interview. 

USCIS also stated it would provide additional guidance if an officer’s RFE is not clear. Other steps USCIS will take are 

predicated on the deployment of Transformation.

 Ensure AFM Chapter 25620 is updated, accurate and complete, or create a superseding source of consolidated 

information for I-751 adjudications. While the Table of Contents for the USCIS Policy Manual available online to the 

public reflects a section on family-based conditional permanent residents, the link to that section is not active.621

 Train USCIS staff to apply the updated AFM or superseding guidance with an emphasis on waiver standards and 

procedures. USCIS stated it planned to begin training in the 4th Quarter of FY 2013 on Form I-751 adjudications. 

619 See supra “Recommendation Update: Petitions to Remove Conditions on Residence” of this Report for more on USCIS’ adjudication of this form of relief. 620 The AFM has been superseded by the USCIS Policy Manual. 621 USCIS Policy Manual, Table of Contents; https://www.uscis.gov/policymanual/HTML/PolicyManual-TableOfContents.html (accessed June 3, 2016).
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 81

Recommendation No. 55—Improving the Adjudication of Applications and Petitions Under Section 204(l) of 

the Immigration and Nationality Act (November 26, 2012); USCIS Response (June 3, 2013)

 Conduct notice-and-comment rulemaking to create or designate a standard form, establish a receipt protocol and 

describe an adjudication process consistent with the plain language of INA section 204(l): USCIS stated following 

the rulemaking process or adopting a formal form would delay implementation of section 204(l) and it could address 

stakeholders’ concerns through alternative means. However, USCIS has recently engaged with the Ombudsman on an 

alternative proposal by the Ombudsman to add relevant 204(l) questions to an existing form.

 Train USCIS staff to interpret and properly apply INA section 204(l) and stop regarding survivor benefit requests as a 

form of discretionary reinstatement: USCIS stated it has properly trained its staff to interpret and apply section 204(l). 

The Ombudsman continues to receive requests for case assistance from applicants experiencing variances and long 

delays in the handling of their requests for relief.

 Publish instructions for applicants and petitioners as to the nature and extent of INA section 204(l)’s coverage and 

related benefit request process: USCIS has implemented this recommendation.622 

 Track and monitor the processing of survivor benefit requests: USCIS stated it would add an action code to its 

electronic database management system that permits USCIS to indicate in its systems when DOS returns a petition due 

to the petitioner’s death, as well as when the beneficiary requests relief under section 204(l).

622 See USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for Surviving Relatives” (Feb. 25, 2016); https://www.uscis.gov/green-card/green-card-throughfamily/basic-eligibility-section-204l-relief-surviving-relatives (accessed May 19, 2016); USCIS Webpage, “How do I apply for relief under INA Section 204(l)?” 

https://my.uscis.gov/helpcenter/article/2469 (accessed May 19, 2016); USCIS Webpage, “If my petitioning relative dies, can I still immigrate?” https://my.uscis.gov/

helpcenter/article/if-my-petitioning-relative-dies-can-i-still-immigrate (accessed May 19, 2016); USCIS Webpage, “What happens if I die before the immigrant I’m 

sponsoring gets a green card?” https://my.uscis.gov/helpcenter/article/what-happens-if-i-die-before-the-immigrant-i-m-sponsoring-gets-a-green-card (accessed May 

19, 2016); see also USCIS Policy Memorandum, “Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality 

Act after the Death of a U.S. Citizen Petitioner” (Nov. 18, 2015); https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1118_Approval_of_a_

Spousal_Immediate_Relative_Visa_Petition.pdf (accessed May 19, 2016).
82 | ANNUAL REPORT TO CONGRESS JUNE 2016

The Ombudsman by the Numbers

0

200

400

600

800

1000

1200

2015 (7,555)

Requests for Case Assistance Received by Month for 2015 and 2016 Reporting Periods

April

890

758

815

732

786

882

702 653

803 803

901

723

May June July August September October November December January February March

2016 (9,448)

Requests for Case Assistance Received by Reporting Period

4000

5000

6000

7000

8000

9000

10000

2012 2013 2014 2015 2016

6135

9448

7555

4500 4531

Requests for Case Assistance—Submission by Category 

2016 Reporting Period

Family 

23%

General

20%

Humanitarian

28%

Employment 

29%

2015 Reporting Period

Family 

23%

General

15%

Humanitarian

38%

Employment 

24%

General form types include Form N-400, Form I-90, 

Form I-131, Form AR-11, Form N-600, and Form G-639.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 83

Top 5 States Where Customers Reside and the Top 5 Primary Form Types

PRIMARY FORM 

TYPE PRIMARY FORM TYPE NAME

2016 

REPORTING 

PERIOD

PERCENT 

INCREASED 

FROM 2015

I-765 Application for Employment Authorization (inclusive of DACA) 1,288 42%

N-400 Application for Naturalization 562 68%

I-526 Immigrant Petition by Alien Entrepreneur 418 201%

I-601A Application for Provisional Unlawful Presence Waiver 177 62%

Requests for Case Assistance Received Regarding Select Forms

California

Requests Received: 1,419

Top Primary Form Names: Count % of 

Total

I-485, Application to Register Permanent 

Residence or Adjust Status 226 16%

I-821D, Consideration of Deferred Action 

for Childhood Arrivals 183 13%

I-765, Application for Employment Authorization 173 12%

I-526, Immigrant Petition by Alien Entrepreneur 137 10%

I-130, Petition for Alien Relative 90 6%

New York

Requests Received: 1,019

Top Primary Form Names: Count % of 

Total

I-485, Application to Register Permanent 

Residence or Adjust Status 264 26%

I-765, Application for Employment Authorization 193 19%

I-130, Petition for Alien Relative 96 9%

N-400, Application for Naturalization 58 6%

I-821D, Consideration of Deferred Action 

for Childhood Arrivals 57 6%

Illinois

Requests Received: 769

Top Primary Form Names: Count % of 

Total

I-821D, Consideration of Deferred Action 

for Childhood Arrivals 305 40%

I-485, Application to Register Permanent 

Residence or Adjust Status 136 18%

I-130, Petition for Alien Relative 88 11%

I-765, Application for Employment Authorization 49 6%

N-400, Application for Naturalization 38 5%

Florida

Requests Received: 461

Top Primary Form Names: Count % of 

Total

I-485, Application to Register Permanent 

Residence or Adjust Status 90 20%

I-130, Petition for Alien Relative 50 11%

I-765, Application for Employment Authorization 47 10%

N-400, Application for Naturalization 40 9%

I-821D, Consideration of Deferred Action for 

Childhood Arrivals 25 5%

Texas

Requests Received: 873

Top Primary Form Names: Count % of 

Total

I-485, Application to Register Permanent 

Residence or Adjust Status 192 22%

I-765, Application for Employment Authorization 88 10%

I-130, Petition for Alien Relative 77 9%

N-400, Application for Naturalization 77 9%

I-821D, Consideration of Deferred Action 

for Childhood Arrivals 68 8%
84 | ANNUAL REPORT TO CONGRESS JUNE 2016

Average Processing Times for USCIS Field Offices for Forms N-400, Application for Naturalization 

(Oct. 1 to Dec. 31, 2015)

Agana GU, 4.6

Charlotte Amalie VI, 5.3

Christiansted VI, 5.3

San Juan PR, 5.1

Seattle, WA 7.9

Spokane WA, 4.5

Portland OR, 7.3 Yakima WA, 3.9

Portland ME, 4.7

Manchester NH, 4.2

Boston MA, 5.1

Providence RI, 3.9

Hartford CT, 4.9

Long Island NY, 6.3

Queens NY, 6.4 New York City NY, 6.0

Albany NY, 5.7

Buffalo NY, 5.1

Saint Albans VT, 5.1

Mount Laurel NJ, 5.0

Baltimore MD, 6.5

Philadelphia PA, 5.3

Newark NJ, 5.3

Washington DC, 6.7

Norfolk VA, 6.5

Raleigh NC, 4.1

Charlotte NC, 5.1

Atlanta GA, 5.5

Charleston SC, 6.1

Jacksonville FL, 6.7

Orlando FL, 5.3

Tampa FL, 4.7

West Palm Beach FL, 4.9

Oakland Park FL, 4.8

Miami FL, 5.9

Kendall FL, 4.3

Hialeah FL, 4.7

Pittsburgh PA,

6.6

Cleveland OH, 4.3

Detroit MI, 5.1 Milwaukee WI, 4.5

Chicago IL, 6.1

Saint Paul MN, 7.2

Columbus OH, 4.3

Louisville KY, 4.9

Cincinnati OH, 4.3 Indianapolis IN, 5.0

Des Moines IA, 8.3

Omaha NE, 4.9

Kansas City MO, 4.1

Saint Louis MO, 8.0

Memphis TN, 6.2

New Orleans LA, 4.8 Houston TX, 6.3

Dallas TX, 5.7

San Antonio TX, 6.0

Fort Smith AR, 5.7

Oklahoma City OK, 6.6

Wichita KS, 5.2

Denver CO, 5.7

Salt Lake City UT, 4.7

Helena MT, 4.0

Boise ID, 4.4

Albuquerque NM, 5.7

El Paso TX, 6.4

Tucson AZ/SUB, 4.5

Phoenix AZ, 5.6

Las Vegas NV, 5.7

Reno NV, 4.6

Sacramento CA, 5.1

San Francisco CA, 6.2

San Jose CA, 5.3

Fresno CA, 4.8

San Fernando Valley CA, 5.9

Santa Ana CA, 5.2

Los Angeles CA,4.7

Los Angeles County CA, 5.7

Harlingen TX, 6.9

San Diego CA, 6.1 Chula Vista CA, 6.1

Imperial CA, 4.6

San Bernardino CA, 5.0

Anchorage AK, 6.0

Honolulu HI, 4.5

Average Processing Times for USCIS Field Offices for Forms I-485, Application to Register Permanent 

Residence or Adjust Status

(Oct. 1 to Dec. 31, 2015)

Source: Information provided by USCIS (May 12, 2016)

Lawrence MA, 5.4

Agana GU, 9.4

Charlotte Amalie VI, 8.5

Christiansted VI, 8.5

San Juan PR, 6.1

Seattle, WA 8.3

Spokane WA, 6.7

Portland OR, 7.5 Yakima WA, 7.0

Portland ME, 8.4

Manchester NH, 8.1

Boston MA, 7.3

Providence RI, 8.1

Hartford CT, 8.2

Long Island NY, 8.4

Queens NY, 9.2 New York City NY, 8.8

Albany NY, 6.7

Buffalo NY, 7.7

Saint Albans VT, 6.6

Mount Laurel NJ, 9.1

Baltimore MD, 7.1

Philadelphia PA, 7.1

Newark NJ, 9.5

Washington DC, 9.0

Norfolk VA, 6.6

Raleigh NC, 4.2

Charlotte NC, 3.7

Atlanta GA, 5.5

Charleston SC, 7.7

Jacksonville FL, 5.3

Orlando FL, 6.0

Tampa FL, 5.4

West Palm Beach FL, 4.5

Oakland Park FL, 5.6

Miami FL, 5.3

Kendall FL, 3.7

Hialeah FL, 3.8

Pittsburgh PA,

10.2

Cleveland OH, 3.6

Detroit MI, 8.1 Milwaukee WI, 5.8

Chicago IL, 7.1

Saint Paul MN, 5.8

Columbus OH, 3.9

Louisville KY, 3.9

Cincinnati OH, 5.0 Indianapolis IN, 4.8

Des Moines IA, 6.0

Omaha NE, 10.7

Kansas City MO, 3.8

Saint Louis MO, 7.0

Memphis TN, 4.6

New Orleans LA, 4.4 Houston TX, 6.3

Dallas TX, 11.1

San Antonio TX, 5.4

Fort Smith AR, 4.9

Oklahoma City OK, 8.4

Wichita KS, 5.8

Denver CO, 10.1

Salt Lake City UT, 6.2

Helena MT, 11.8

Boise ID, 15.8

Albuquerque NM, 4.8

El Paso TX, 6.6

Tucson AZ/SUB, 5.9

Phoenix AZ, 6.3

Las Vegas NV, 7.0

Reno NV, 20.8

Sacramento CA, 8.2

San Francisco CA, 7.3

San Jose CA, 6.1

Fresno CA, 5.1

San Fernando Valley CA, 7.2

Santa Ana CA, 6.5

Los Angeles CA, 5.2

Los Angeles County CA, 6.3

Harlingen TX, 5.9

San Diego CA, 6.1 Chula Vista CA, 6.2

Imperial CA, 7.1

San Bernardino CA, 4.0

Anchorage AK, 6.8

Honolulu HI, 4.3

Source: Information provided by USCIS (Apr. 13, 2016)

Lawrence MA, 5.5

Calexico CA, 5.3
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 85

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 for 
86 | ANNUAL REPORT TO CONGRESS JUNE 2016

such administrative action as may be appropriate to

resolve problems encountered by individuals 

and employers.

(e) PERSONNELACTIONS—

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) CONSULTALTION—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.
CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN | 87

Request for Case Assistance Process
88 | ANNUAL REPORT TO CONGRESS JUNE 2016

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