Annual Report 2014 

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Ombudsman

June 27, 2014 

Annual Report 2014
� Citizenship and Immigration Services 

Ombudsman 

June 27, 2014 

i Citizenship and Immigration Services Ombudsman 
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Annual Report to Congress – June 2014 ii 
             

       

     

     

June 27, 2014 

Office of the Citizenship and Immigration Services

Ombudsman

U.S. Department of Homeland Security

Mail Stop 0180

Washington, DC 20528­0180

The Honorable Patrick Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC   20510 

The Honorable Bob Goodlatte 

Chairman 

Committee on the Judiciary 

United States House of Representatives 

Washington, DC 20515 

The Honorable Chuck Grassley 

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 2014 Annual Report. 

I am available to provide additional information upon request. 

Sincerely, 

Maria M. Odom 

Citizenship and Immigration Services Ombudsman 

www.dhs.gov/cisombudsman

iii Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A Message from the Ombudsman
�

I am honored to submit the second Annual Report to Congress of my tenure as the 

Citizenship and Immigration Services Ombudsman. In this Report, we detail USCIS’s 

accomplishments and challenges across the spectrum of family, humanitarian, and 

employment-based immigration. 

Having spent my career in the immigration field, I recognize USCIS’s achievements 

in turning the legacy Immigration and Naturalization Service into the more agile and 

customer-oriented agency it is today. In the past are years-long processing times for 

naturalization and green card applications. The addition of the USCIS Lockbox operations 

and the National Benefits Center have brought about more efficient and reliable intake 

and filing processes. The days when many immigrants feared approaching the agency for 

information have been replaced by a commitment to outreach with community relations 

officers who play a vital role in connecting USCIS to the communities it serves. Indeed, 

public engagement has become fundamental to the way USCIS conducts its work and is 

regularly part of developing new policy and initiatives. 

USCIS service centers have also demonstrated that the agency can manage high volume, 

for example by successfully implementing the Deferred Action for Childhood Arrivals program. Their work requires constant 

adjustment to rising and shifting workloads, while addressing customer inquiries, vetting individuals, and screening for 

eligibility for immigration benefits. 

This year, USCIS promptly and efficiently implemented the U.S. Supreme Court decision in Windsor,

I holding Section 3 of the 

Defense of Marriage Act (DOMA) unconstitutional. Almost immediately following the June 26, 2013 decision, USCIS began 

adjudicating immigration benefits submissions filed on behalf of same-sex spouses. USCIS effectively tracked previously filed 

cases and reopened those that were denied solely because of DOMA. The agency response to Windsor shows its capacity to 

provide world-class service. 

USCIS also issued guidance during this reporting period providing parole in place for spouses, children, and parents of active 

members of the U.S. Armed Forces and other military family members. This long-awaited policy ensures that our military 

personnel can focus on their readiness, rather than their families’ immigration status. 

Near the close of this reporting period, USCIS issued needed guidance pertaining to the Provisional Waiver program, an 

important tool to support family unity that should be expanded to include other immigrant categories in the future. In 

the same manner as the Windsor response, the agency is to be commended for proactively reopening and re-adjudicating 

provisional waiver cases impacted by the new policy. 

USCIS’s efforts to address gaps in policy and improve operations in the EB-5 Immigrant Investor program are noteworthy. 

Shortly before publication of our 2013 Annual Report, USCIS issued comprehensive new policy guidance. The agency also 

relocated its adjudications unit to Washington, D.C.; hired a new program office lead, adjudicators, and economists; and restarted stakeholder engagements. The result is a transparent and rejuvenated investment and job creation program, with a 

focus on customer service and integrity. 

As we close another reporting period, however, challenges that USCIS customers currently face still mirror difficulties of 

decades past. Many of these challenges lie with the USCIS Service Center Operations Directorate, where over 50 percent of 

USCIS adjudications are performed. Service centers, as well as certain field offices, still struggle with ensuring quality and 

consistency in adjudications. Overly burdensome and unnecessary Requests for Evidence (RFEs) continue to erode trust 

in our immigration system, delay adjudications, and diminish confidence in adjudicators’ understanding of law and policy. 

Erroneous template denials and the incorrect application of evidentiary standards cause hardship to individuals and employers. 

I United States v. Windsor, 570 U.S. 12 (2013) (Docket No. 12-307). 

Annual Report to Congress – June 2014 iv 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Service centers continue to operate under inconsistent local rules that lead to disparities in adjudications. Shifts in production 

priorities still require more vigilant and strategic planning to avoid significant backlogs in other product lines, such as those 

that developed this past year in family-based petitions for immediate relatives. Meanwhile, many customers still receive 

inadequate and vague information about pending cases, and they are unable to rely on posted processing times due to the 

manner in which the agency calculates them. 

In this year’s Report, we address ongoing concerns regarding policy and field office adjudications of Special Immigrant 

Juvenile (SIJ) petitions, which offer immigration relief to children who are found by a state court to be abused, neglected, 

or abandoned. Many of these SIJ issues were the subject of Ombudsman recommendations in 2011. We also discuss 

persistent challenges in high skilled adjudications, including RFEs. Again, we include adjudications data (RFE and approval 

rates) for key nonimmigrant employment categories, and, for the first time, data pertaining to decisions by USCIS’s 

Administrative Appeals Office. 

I am hopeful that some of the longstanding issues discussed in this Report will be addressed through USCIS’s new Quality 

Driven Workplace Initiative. The agency has converted employee performance standards from quantitative to qualitative 

measures, seeking to foster an environment in which quality decisions and customer service are front and center priorities. 

Over the past decade, USCIS has accomplished much, but the agency must continue to seize every opportunity to fully 

complete its transformation. 

During this reporting period, my office received approximately 6,100 requests for case assistance – over one third more 

than we received in each of the two previous years. While I welcome the stakeholder recognition of our effectiveness at 

performing our statutory mission, I also believe this 35 percent increase in our casework underscores the need for USCIS to 

improve the quality of adjudications and service delivery across all product lines. 

In August 2013, I became Chair of the Department of Homeland Security’s Blue Campaign, the unified voice for DHS’s efforts 

to combat human trafficking. Working in collaboration with law enforcement, government, non-governmental, and private 

organizations, the Campaign strives to protect the basic right of freedom. I am very proud of the work of my colleagues in 

the Department and across the entire U.S. government to combat the heinous crime of modern day slavery, and I thank the 

many Members of Congress who are working arduously to make our communities safe, especially our youth, from those who 

exploit humans as a commodity. 

Today’s immigrants, like those who came before them, dream that the future will be better in America for their children and 

their grandchildren. Whether they are fleeing persecution, throwing off the shackles of human trafficking, reuniting with 

family, or hoping to start a new business, immigration is essential to and enriches our country. 

I want to thank Secretary of Homeland Security Jeh Johnson, Deputy Secretary Alejandro Mayorkas, and USCIS Acting Director 

Lori Scialabba for their support and continued collaboration. I am privileged to play a role in helping to make the U.S. 

immigration system more efficient, responsive, and just. 

Sincerely, 

Maria M. Odom 

Citizenship and Immigration Services Ombudsman 

v Citizenship and Immigration Services Ombudsman 
Executive Summary 

Executive Summary 

The Office of the Citizenship and Immigration Services 

Ombudsman’s (Ombudsman) 2014 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 achievements during 

this reporting period; and 

• A detailed discussion of pervasive and serious problems, 

recommendations, and best practices in the family, 

employment and humanitarian areas, as well as in 

customer service. 

Ombudsman’s Office Overview 

The Ombudsman, established by the Homeland Security 

Act of 2002, assists individuals and employers in resolving 

problems with USCIS. Ombudsman policy and casework 

is carried out by fewer than 30 full-time professionals with 

wide-ranging skills and areas of subject matter expertise in 

immigration law. 

From April 1, 2013 to March 31, 2014, the Ombudsman 

received 6,135 requests for case assistance, an increase 

of over 35 percent from the 2013 reporting period. 

Approximately 89 percent of requests during the reporting 

period were received through the Ombudsman’s Online 

Case Assistance system. Overall, 34 percent of requests 

were for humanitarian-based matters; 27 percent for 

family-based matters; 23 percent for employment-based 

matters, and 16 percent for general-immigration matters 

(such as applications for naturalization). In 70 percent 

of case assistance requests submitted to the Ombudsman, 

individuals and employers first contacted USCIS’s National 

Customer Service Center, and 28 percent appeared at 

InfoPass appointments at a USCIS local field office in an 

effort to resolve the matter directly with the agency. The 

Ombudsman is committed to reviewing all incoming 

requests for case assistance within 30 days and taking action 

to resolve 90 percent of requests within 90 days. 

This year, the Ombudsman visited communities and 

stakeholders in regions across the United States. Despite 

the lapse in federal government funding, which ceased 

office operations for over two weeks in October 2013, 

the Ombudsman held its third Annual Conference on 

October 24, 2013. The conference featured an update on 

immigration reform legislative developments from the White 

House Domestic Policy Council’s Senior Policy Director for 

Immigration; a plenary panel on approaches and lessons 

learned from large-scale legal services responses; and panel 

discussions on challenges in high-skilled immigration, 

credible fear screenings, and waivers of inadmissibility, 

among other issues. Through in-person engagements 

and teleconferences, the Ombudsman reached thousands 

of stakeholders. During the first two quarters of Fiscal 

Year (FY) 2014, the Ombudsman conducted 60 outreach 

activities and is on pace to complete over 150 for the year. 

The Ombudsman also recently revised its website content 

to clarify the office’s scope of case assistance and provide 

Frequently Asked Questions and tips to assist individuals 

and employers when filing requests for case assistance with 

the office. 

On March 24, 2014, the Ombudsman issued 

recommendations titled Employment Eligibility for Derivatives 

of Conrad State 30 Program Physicians, which seek to ensure 

that spouses of foreign medical doctors accepted into the 

Conrad State 30 program are able to obtain employment 

authorization. On June 11, 2014, the Ombudsman issued 

recommendations titled Improving the Quality and Consistency 

in Notices to Appear, which is the charging document that 

initiates removal proceedings. Additionally, the Ombudsman 

identified five systemic issues that were brought to USCIS’s 

attention through briefing papers and meetings with agency 

leadership: 

• Special Immigrant Juvenile adjudications; 

• USCIS processing times; 

• Agency responses to service requests submitted through 

the Service Request Management Tool; 

• USCIS policy and practice in accepting Form G-28, 

Notice of Entry of Appearance as Attorney or Accredited
� 

Representative; and
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• Challenges in the process for payment of the Immigrant 

Visa Fee using USCIS’s Electronic Immigration 

System (ELIS). 

The Ombudsman worked to promote interagency liaison 

through interagency meetings including: 

Annual Report to Congress – June 2014 vi 
• Monthly meetings with the U.S Department of State 

(DOS) and USCIS on the visa queues aimed at ensuring 

the transparent, orderly, and predictable movement of Visa 

Bulletin cut-off dates; and 

• Quarterly data quality working group meetings with 

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

Immigration and Customs Enforcement (ICE), and the 

DHS Office of the Chief Information Officer to facilitate 

problem-solving related to the Systematic AlienVerification 

for Entitlements (SAVE) program and other DHS systems 

used to verify immigration status and benefits eligibility. 

Additionally, since August 2013, Ombudsman Odom 

has served as the Chair of the Blue Campaign Steering 

Committee (Blue Campaign), which is the unified voice 

for DHS’s efforts to combat human trafficking.Working in 

collaboration with law enforcement, government, nongovernmental and private organizations, the Blue Campaign 

provides information on training and outreach, how 

traffickers operate, and victim assistance. Since September 

2013, Ombudsman Odom also has served as Acting 

Co-Chair of the DHS Council for Combating Violence 

Against Women. 

Key Developments and Areas 

of Study 

Families and Children 

Provisional and Other ImmigrantWaivers 

of Inadmissibility 

The Provisional Unlawful Presence Waiver program holds 

out the promise of an effective solution to a longstanding 

challenge in family immigration. In 2012, USCIS 

consolidated Form I-601, Application for Waiver of Grounds 

of Inadmissibility waiver adjudications in one USCIS service 

center rather than allowing adjudications to continue at a 

number of USCIS offices overseas. In 2013, USCIS sought 

to further address the difficulties of the overseas waiver 

process by implementing a stateside provisional waiver 

for immediate relatives of U.S. citizens who are required 

to travel abroad to complete the immigration visa process 

at a DOS consulate abroad. In January 2014, USCIS issued 

new guidance crucial to ensuring the success of the 

Provisional Waiver program. While this guidance addresses 

the most pressing stakeholder concerns, other aspects of 

the provisional waiver process remain problematic, such 

as denials where USCIS found the applicant inadmissible 

for fraud or a willful misrepresentation without a full 

examination of the information contained in the record 

or without first affording the applicant the opportunity 

to respond. There is no appeal available for a denial of a 

provisional waiver. 

Special Immigrant Juveniles 

The Ombudsman is concerned with USCIS’s interpretation 

and application of its Special Immigration Juvenile (SIJ) 

“consent” authority. This interpretation has led to unduly 

burdensome and unnecessary Requests for Evidence (RFEs) 

for information concerning underlying state court orders, 

and in some cases, unwarranted denials. Other issues 

reported to the Ombudsman include USCIS questioning 

state court jurisdiction, concerns with age-outs and decisions 

for individuals nearing age 21, and inconsistent child 

appropriate interviewing techniques. The Ombudsman 

has brought these issues to USCIS’s attention and in this 

Report presents initial recommendations calling for 

clarification of policy and centralized SIJ adjudications 

to improve consistency. 

The Deferred Action for Childhood Arrivals Program 

Nearly two years since the start of the Deferred Action for 

Childhood Arrivals (DACA) program, USCIS has approved 

more than 560,000 applications for individuals who were 

brought to the United States as children. Through this 

program, thousands of young people now have the ability 

to continue their education and work lawfully in the United 

States. Despite the successful program launch, DACA 

represents approximately 15 percent of the requests for case 

assistance received by the Ombudsman during this reporting 

period. Many of these cases are pending past USCIS’s 

six-month processing goal due to background checks and 

issuance of RFEs. In other case assistance requests submitted 

to the Ombudsman, USCIS issued template denials that 

provide limited information as to the basis for denial; 

inconsistent with agency policy, some of these denials were 

issued without USCIS first issuing an RFE or Notice of Intent 

to Deny. As the renewal process for DACA benefits begins 

in summer 2014, the Ombudsman will continue to engage 

with stakeholders and USCIS to resolve long-pending cases 

and address any future issues. 

Employment 

Highly SkilledWorkers: Longstanding Issues with H-1B 

and L-1 Policy and Adjudications 

Stakeholders continue to report concerns regarding the 

quality and consistency of adjudications of high-skilled 

petitions. There are ongoing issues with the application of 

the preponderance of the evidence legal standard and gaps 

in agency policy. Stakeholders cite redundant and unduly 

burdensome RFEs, and data reveal an RFE rate of nearly 

50 percent in one key high-skilled visa category. Employers 

continue to seek the Ombudsman’s assistance to resolve case 

matters and systemic issues in high-skilled adjudications. 

vii Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The H-2TemporaryWorker Programs 

Stakeholders are increasingly turning to the Ombudsman 

for case assistance related to the H-2 temporary worker 

programs. During this reporting period, the Ombudsman 

received an increase in requests for case assistance, most 

submitted by small and medium-sized businesses petitioning 

for multiple workers, with some requesting 100 or more 

foreign nationals to fill their temporary labor needs. 

Stakeholders report receiving RFEs for petitions that were 

approved in prior years for the same employer with identical 

temporary need and in the same sector. In May 2014, the 

Ombudsman hosted an interagency meeting with the U.S. 

Department of Labor, DOS and DHS to review the entire H-2 

process and begin to address these concerns. 

The EB-5 Immigrant Investor Program 

The Immigrant Investor program has presented USCIS with 

significant challenges due to many variables, including 

the complexity of projects, the financial arrangements 

with investors, and the attribution of job creation to the 

investment. In April 2013, USCIS relocated adjudications 

to Washington, D.C. and issued new guidance addressing 

several longstanding stakeholder concerns. While 

stakeholders continued to raise concerns with adjudication 

delays, the Ombudsman received fewer requests for case 

assistance (61 requests) than in the 2013 reporting period 

(441 requests). The new adjudications unit and updated 

policy guidance usher in a new era for this increasingly 

popular investment and job-creating program. 

Humanitarian 

DHS Initiatives forVictims of Abuse,Trafficking, 

and Other Crimes 

DHS and USCIS initiatives support vital immigration 

protections for victims of trafficking and other violent 

crimes. Starting in 2013, Ombudsman Odom became Chair 

of the Blue Campaign Steering Committee and Acting CoChair of the DHS Council on CombatingViolence Against 

Women. Working alongside USCIS, other DHS components, 

law enforcement, and community partners, the Blue 

Campaign and the Council helped advance the Department’s 

commitment to increasing awareness of human trafficking 

and strengthening humanitarian programs and relief. 

USCIS Processing of Immigration Benefits forVictims of 

DomesticViolence,Trafficking, Sexual Assault, and Other 

Violent Crimes 

USCIS continues to devote attention to improve services 

for victims eligible for immigration benefits. This year 

USCIS made improvements in processing times for VAWA 

self-petitioners, U status petitioners, and T status applicants. 

The DHS Deputy Secretary committed to continuing to 

address processing times for these benefit categories, and 

stakeholders have emphasized the importance of providing 

interim employment authorization where USCIS does not 

meet the 180-day processing time goal. Stakeholders also 

continue to raise concerns about RFEs in the adjudication 

of these humanitarian benefits. For example,VAWA selfpetitioners and applicants for conditional residence waivers 

due to battery or extreme cruelty report receiving RFEs 

that seek the type of documentation used to prove a good 

faith marriage in non-VAWA family-based cases (e.g., 

original marriage certificates, original joint bank account 

statements, etc.). RFEs increase processing times and may 

require additional attention from legal service providers, 

diminishing their capacity to assist victims. As USCIS trains 

new officers in theVermont Service CenterVAWA Unit, the 

Ombudsman will continue to monitor the quality of RFEs. 

Increases in Credible and Reasonable Fear Requests and 

the Effect on Affirmative Asylum Processing 

Within the past three years, there has been a significant 

increase in the number of foreign nationals, many of them 

recent arrivals at the U.S. southern border, expressing fear of 

returning to their home countries and triggering credible 

and reasonable fear interview referrals to USCIS from CBP 

and ICE. USCIS has shifted resources, made new hires, and 

updated agency guidance to address the rising number of 

credible and reasonable fear claims. Despite these efforts, 

the seven-fold increase in credible fear claims – a product 

of a confluence of factors including regional violence and 

economic conditions in Mexico, El Salvador, Honduras, and 

Guatemala – has resulted in lengthy delays for affirmative 

asylum processing and a significant increase in asylum case 

referrals to the Immigration Courts. 

Humanitarian Reinstatement and Immigration and 

Nationality Act Section 204(l) Reinstatement 

Humanitarian reinstatement is a regulatory process under 

which family-based beneficiaries whose approved petitions 

are revoked automatically upon the death of the petitioner 

may continue to seek immigration benefits if certain factors 

are established. There is also a streamlined reinstatement 

process, covered under Immigration and Nationality Act 

(INA) section 204(l), for certain surviving relatives who are 

in the United States and had an approved petition at the time 

of the qualifying relative’s death. Gaps in guidance, lack of 

uniform procedures, and imprecise evidentiary requirements 

from USCIS in the handling of humanitarian and INA section 

204(l) reinstatement cases are inconsistent with the remedial 

and humanitarian nature of this relief. 

Annual Report to Congress – June 2014 viii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interagency, Process Integrity, and Customer Service 

USCIS Processing Times and their Impact on 

Customer Service 

Individuals and employers seeking immigration benefits 

set expectations based on processing times, and they have 

important customer service impacts. USCIS call centers 

will not initiate service requests with USCIS local offices 

and service centers to check case status until cases are 

outside posted processing times. Similarly, in FY 2014, the 

Ombudsman instituted a new policy not to accept requests 

for case assistance, absent urgent circumstances, until cases 

have been pending 60 days past USCIS posted processing 

times. Stakeholders have raised concerns regarding USCIS 

processing time accuracy, the method by which they are 

calculated, and the timeliness with which they are posted. 

The Ombudsman urges USCIS to consider new approaches 

to calculating case processing times. 

USCIS Customer Service: Ensuring Meaningful Responses 

to Service Requests 

USCIS generates “service requests” through the Service 

Request Management Tool based on inquiries from 

individuals and employers, which are transferred to the 

USCIS facility where the matter is pending. USCIS service 

centers and local offices then respond, often with general 

templates that provide little information other than the 

case remains pending. In these circumstances, stakeholders 

find it necessary to make repeat requests, schedule InfoPass 

appointments at USCIS local offices, or submit requests for 

case assistance to Congressional offices and the Ombudsman. 

These repeat requests increase the overall volume of calls 

and visits to USCIS – amplifying the level of frustration 

customers experience and costing the agency, as well as 

individuals and employers, both time and money. Unhelpful 

responses to USCIS service requests continue to be a 

pervasive and serious problem. 

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

of Appearance as Attorney or Accredited Representative 

USCIS is not issuing notice to attorneys or accredited 

representatives when it rejects Form G-28, Notice of Entry 

of Appearance as Attorney or Accredited Representative. The 

rejection of a notice of appearance, without any notification 

to the submitting attorney or accredited representative, raises 

concerns pertaining to the fundamental right to counsel. 

It also creates practical difficulties when the attorney or 

accredited representative is not notified of USCIS actions, and 

is, therefore, unable to inform the client of or advise on how 

to respond to agency actions, including interview notices, 

RFEs, and denials. USCIS has acknowledged problems with 

its current method for handling Form G-28 rejections. 

The agency indicated that it has formulated a number of 

solutions that are being reviewed by agency leadership. 

FeeWaiver Processing Issues 

Fee waivers are important to vulnerable segments of the 

immigrant community, including elderly, indigent, or 

disabled applicants. This year’s Report provides an update of 

issues described in the Ombudsman’s 2013 Annual Report, 

including improvements made by USCIS. The Report also 

summarizes stakeholder reports of continued problems that 

affect certain aspects of fee waiver processing, including 

inconsistencies in guidance and the application of fee waiver 

standards. USCIS has rapidly sought to resolve individual 

cases the Ombudsman has brought to the agency’s attention, 

but systemic issues remain and require a review of guidance 

and form instructions, as well as agency intake procedures. 

USCIS Administrative Appeals Office: Ensuring Autonomy, 

Transparency, and Timeliness to Enhance the Integrity 

of Administrative Appeals 

In the 2013 Annual Report, the Ombudsman discussed 

issues pertaining to the Administrative Appeals Office (AAO), 

including a lack of transparency regarding AAO policies and 

procedures, and challenges for pro se individuals who seek 

information in plain English about the administrative appeals 

process. Over the past year, USCIS eliminated lengthy 

processing times once cases reach the AAO and revised its 

website content. However, stakeholders still report issues 

stemming from the manner in which the AAO receives, 

reviews, and decides appeals. Of particular concern is the 

need for an AAO practice manual; the absence of any up-todate statutory or regulatory standard for AAO operations; 

the AAO’s lack of direct authority to designate precedent 

decisions; and the length of time for cases to be transferred 

to the AAO from USCIS service centers and field offices 

for review, and vice versa for remand. In this Report, the 

Ombudsman publishes AAO data, provided by USCIS, for 

select form types. The Ombudsman will further evaluate and 

discuss this data with USCIS in the coming year to better 

understand the disparities in the AAO sustain and dismissal 

rates among immigration benefit types. 

ix Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Data Quality and its Impact on those Seeking 

Immigration and Other Benefits 

Individuals report issues with the USCIS SAVE program 

verifying a foreign national’s immigration status with a 

benefit-granting agency, such as a state driver’s license office 

or a local Social Security Administration (SSA) office. SAVE 

uses data from DHS, DOS, the U.S. Department of Justice 

and other agencies to verify an individual’s immigration 

status, usually at the time the individual is applying for 

a state or local benefit. USCIS has taken steps to resolve 

certain quality issues and improve customer service but 

problems persist. In April 2013, the Ombudsman convened 

an interagency working group, the Data Quality Forum, to 

focus on issues pertaining to DHS data sharing and integrity. 

While communication and new working relationships have 

developed as a result of this forum, data sharing challenges 

remain and addressing them will require a renewed 

commitment on the part of participating offices. 

Problems with Payment of the ImmigrantVisa Fee 

via ELIS 

In May 2013, USCIS began requiring that immigrant visa 

recipients use USCIS’s Electronic Immigration System (ELIS) 

to pay the $165 fee to cover the cost of producing their 

Permanent Resident Cards. Electronic payment of this fee 

is problematic for a variety of reasons: 1) computer access 

is required in order to make the payment, and USCIS has 

not specified any alternative method for payment; 2) the 

visa recipient must create an ELIS account in order to make 

the payment, with no provision for payment by an attorney 

or other authorized representative; 3) the need for a credit 

card or a bank account makes payment impossible for some 

visa applicants; and 4) the account registration process, 

which requires the user to answer a series of questions, is 

available only in English. USCIS is consulting with counsel 

and privacy authorities to develop a payment option for 

representatives of the visa recipient. 

Annual Report to Congress – June 2014 x 
Table of Contents 
� Letter to Congress ....................................................................................................................................iii 

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

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

Ombudsman’s Office Overview ................................................................................................................... 1
�

Key Developments and Areas of Study ....................................................................................................... 8
�

Families and Children ................................................................................................................................ 9
�

• Provisional and Other Immigrant Waivers of Inadmissibility...............................................................................................10
�

• Special Immigrant Juveniles.................................................................................................................................................13
�

• The Deferred Action for Childhood Arrivals Program ..........................................................................................................15
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Employment ............................................................................................................................................ 19
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• Highly Skilled Workers: Longstanding Issues with H-1B and L-1 Policy and Adjudications.................................................20 

• The H-2 Temporary Worker Programs..................................................................................................................................26
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• The EB-5 Immigrant Investor Program ................................................................................................................................27
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Humanitarian .......................................................................................................................................... 31
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• DHS Initiatives for Victims of Abuse,Trafficking, and Other Crimes ....................................................................................32
�

• USCIS Processing of Immigration Benefits for Victims of Domestic Violence,Trafficking, Sexual Assault, 
�

and Other Violent Crimes.....................................................................................................................................................34
�

• Increases in Credible and Reasonable Fear Requests and the Effect on Affirmative Asylum Processing.................................37
�

• Humanitarian Reinstatement and Immigration and Nationality Act Section 204(l) Reinstatement .....................................42
�

Interagency, Process Integrity, and Customer Service .............................................................................. 47
�

• USCIS Processing Times and their Impact on Customer Service...........................................................................................48
�

• USCIS Customer Service: Ensuring Meaningful Responses to Service Requests....................................................................51
�

• Issues with USCIS Intake of Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative ......................53
�

• Fee Waiver Processing Issues ................................................................................................................................................54
�

• USCIS Administrative Appeals Office: Ensuring Autonomy,Transparency, and Timeliness to Enhance 

the Integrity of Administrative Appeals................................................................................................................................55
�

• Data Quality and its Impact on those Seeking Immigration and Other Benefits...................................................................59
�

• Problems with Payment of the Immigrant Visa Fee via ELIS .................................................................................................60
�

Recommendations Updates ..................................................................................................................... 63
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• Employment Eligibility for Derivatives of Conrad State 30 Program Physicians...................................................................63
�

• Improving the Quality and Consistency of Notices to Appear .............................................................................................63
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Appendices ............................................................................................................................................. 65
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xi Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ombudsman’s Office Overview
�

The Office of the Citizenship and Immigration Services 

Ombudsman’s (Ombudsman)1 mission 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; 

the Ombudsman is not a part of USCIS. See Appendix 2: 

U.S. Department of Homeland Security Organizational
� 

Chart.
�

•	�Impartial. The Ombudsman works in a neutral, impartial 

manner to improve the delivery of immigration benefits 

and services. 

•	�Confidential. Individuals, employers, and their legal 

representatives 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 assistance and requesting 

that USCIS engage in corrective actions, where appropriate; 

• 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’s attention for 

resolution; and 

• Facilitating interagency collaboration and conducting 

outreach to a wide range of public and private 

stakeholders. 

As of the date of this Report, the Ombudsman has fewer 

than 30 full-time employees with diverse backgrounds and 

areas of subject matter expertise in immigration law and 

policy. These individuals include attorneys who previously 

worked for non-governmental organizations representing 

families and vulnerable populations; private sector business 

immigration experts; and former USCIS, U.S. Department 

of Labor, and U.S. Department of State (DOS) adjudicators 

and staff. 

Since FiscalYear (FY) 2011, the Ombudsman’s budget 

has been reduced by more than $900,0003

; at the same 

time requests for case assistance have significantly risen. 

The office has reached this lower funding level through 

attrition, as well as cuts to travel, training and contracts. 

The Ombudsman has benefited from the DHS Rotational 

Program with individuals coming to the office for 

temporary assignments to assist with casework, fielding 

general inquiries from the public, and redesigning the 

Ombudsman’s website. The President’s FY 2015 Budget 

request to Congress for DHS sought to return the office to 

its prior funding level. The Ombudsman is pleased that the 

FY 2015 budget request reaffirms its mission and work. 

Requests for Case Assistance 

In the 2014 reporting period (April 1, 2013 - March 31, 

2014), the Ombudsman received 6,135 case assistance 

requests, an increase of more than 35 percent from the 2013 

reporting period total. Case assistance requests involved 

the following subject matter: Humanitarian, Family, 

Employment, and General. See Figure 1: Case Submission by 

Category. This year requests for case assistance related to the 

Deferred Action for Childhood Arrivals program contributed 

to a significant increase in humanitarian-related requests 

received by the Ombudsman, representing 15 percent of all 

such requests. 

1 In this Report, the term “Ombudsman” refers interchangeably to the Ombudsman’s staff and the office. 

2 Homeland Security Act of 2002 (HSA) § 452, Pub. L. No. 107-296. See Appendix 1: Homeland Security Act - Section 452 - Citizenship and Immigration 

Services Ombudsman.
�

3 See Office of the Citizenship and Immigration Services Ombudsman Expenditure Plans for FiscalYears 2012 to 2014.
�

Annual Report to Congress – June 2014	� 1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIGURE 1: CASE SUbMISSIOn by CATEGORy 

34% 

27% 

16% 

23% 

CASE TyPE 

Humanitarian 

Family 

Employment 

General 

The Ombudsman’s jurisdiction is limited by statute to case 

problems involving USCIS.4 Individuals, employers, and 

their legal representatives may contact the Ombudsman 

after encountering problems with USCIS in the processing 

of their immigration-related applications and petitions. 

Approximately 47 percent of case assistance requests 

received during the reporting period were submitted 

directly by individuals and employers, and 53 percent were 

submitted by attorneys or accredited representatives. The 

top five states from which the Ombudsman received case 

assistance requests are: California,Texas, NewYork, 

Florida and Illinois. See Figure 2: Top Five States for 

Case Submissions. 

The Ombudsman encourages individuals and employers to 

submit requests for assistance through the Ombudsman’s 

Online Case Assistance, but they can also submit a request 

via mail, email and facsimile. Approximately 89 percent of 

case assistance requests during the reporting period were 

received by the Ombudsman through the online system. 

See Figure 3: Case Submission Mode. 

FIGURE 2: TOP FIvE STATES FOR CASE SUbMISSIOnS 

1,000 

800 

600 

400 

200 

0 

868 

California 

857 

Texas 

638 

New York 

457 

Florida 

303 

Illinois 

Online All Other Means 

FIGURE 3: CASE SUbMISSIOn MODE 

60% 40% 

2012 

91% 9% 

2013 

89% 11% 

2014 

4 HSA § 452(b)(1). Jurisdiction may extend to issues involving both USCIS and another government entity. The Ombudsman does not provide 

legal advice. 

2 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

The Ombudsman evaluates each request for case assistance 

by examining facts, reviewing relevant DHS data systems 

and analyzing applicable laws, regulations, policies and 

procedures. After assessing the case assistance request, the 

Ombudsman may contact USCIS service centers, field offices, 

or other facilities to request they review the matter and take 

action as appropriate. See Figure 4: Top Ten USCIS Facilities 

Contacted. 

In certain scenarios, the Ombudsman will expedite a request 

based on an emergency or hardship.5 

 In deciding whether 

to expedite, the Ombudsman adheres to the same criteria as 

USCIS.6 

 When a case assistance request falls outside of the 

Ombudsman’s jurisdiction, the individual or employer is 

referred to the pertinent government agency. See Figure 5: 

Ombudsman Case Assistance Request Process. 

 

    

 

 

 

 

  

nebraska Service Center 

Texas Service Center 

vermont Service Center 

California Service Center 

national benefits Center 

new york City Field Office 

Chicago Field Office 

Refugee Affairs Division 

Dallas Field Office 

Washington Field Office 

0 

400 

200 

600 

800 

1,000 

1,200 

1,045 

832 805 

580 

444 

135 121 102 98 89 

FIGURE 4: TOP TEn USCIS FACILITIES COnTACTED 

5 Individuals or employers requesting expedited handling should clearly state so in Section 10 (Description) of Form DHS-7001, Case Assistance Form and 

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.
�

6 U.S. Department of Justice Memorandum, “Service Center Guidance for Expedite Requests on Petitions and Applications” (Nov. 30, 2001).
�

See also USCIS Webpage, “Expedite Criteria” (Jun. 17, 2011); http://www.uscis.gov/forms/expedite-criteria (accessed Mar. 14, 2014). The criteria are:
�

severe financial loss to company or individual; extreme emergent situation; humanitarian situation; nonprofit status of requesting organization in 

furtherance of the cultural and social interests of the United States; U.S. Department of Defense or National Interest Situation; USCIS error; and compelling 

interest of USCIS.
�

Annual Report to Congress – June 2014 3 
 

 

 

 

 

 

 

 

FIGURE 5: OMbUDSMAn CASE ASSISTAnCE REqUEST PROCESS 

Helping Individuals and Employers Resolve Problems with USCIS 

Before asking the Ombudsman for help with an application or petition, try to resolve the issue with USCIS by: 

• Obtaining information about the case at USCIS My Case Status at www.uscis.gov. 

• Submitting an e-Request with USCIS online at https://egov.uscis.gov/e-Request. 

• Contacting the USCIS National Customer Service Center (NCSC) for assistance at 1-800-375-5283. 

• Making an InfoPass appointment to speak directly with a USCIS Immigration Services Officer in a field office 

at www.infopass.uscis.gov. 

If you are unable to resolve your issue with USCIS, you may request assistance from the Ombudsman. Certain types 

of requests involving refugees, asylees, victims of violence, trafficking, and other crimes must be submitted with a handwritten 

signature for consent purposes. This can be done using Option 1 below and uploading a signed Form DHS-7001 to the 

online case assistance request. 

OPTIOn

1 

Submit an online request for case assistance available on the Ombudsman’s website at 

www.dhs.gov/cisombudsman. This is the recommended process. 

OPTIOn

2 

Download a printable case assistance form (Form DHS-7001) from the Ombudsman’s website 

www.dhs.gov/cisombudsman. Submit a signed case assistance form and supporting documentation by: 

Email: cisombudsman@hq.dhs.gov Fax: (202) 357-0042 

Mail: Office of the Citizenship and Immigration Services Ombudsman 

 U.S. Department of Homeland Security
�

 Attention: Case Assistance
�

 Mail Stop 0180
�

 Washington, D.C. 20528-0180
�

Individuals submitting a request from outside the United States cannot use the online request form 

and must submit a hard copy case assistance request form. 

After receiving a request for case assistance, the Ombudsman: 

1 

2 

3 

4 

5 

STEP 1 

Provides a case submission number to confirm receipt. 

STEP 2 

Reviews the request for completeness, including signatures and a Form G-28, Notice of Entry of Appearance 

as Attorney or Accredited Representative, if submitted by a legal representative. 

STEP 3 

Assesses the current status of the application or petition, reviews relevant laws and policies, and determines 

how the Ombudsman can help. 

STEP 4 

Contacts USCIS field offices, service centers, asylum offices, or other USCIS offices to help resolve difficulties 

the individual or employer is encountering. 

STEP 5 

Communicates to the customer the actions taken to help. 

4 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

100

90

80

70

60

50

40

30

20

10

0

PERCEnTAGE 

visited USCIS My Case Contacted the nCSC Attended InfoPass 

Status Online appointment at a USCIS 

local field office 

The Ombudsman is an office of last resort. Prior to 

contacting the Ombudsman, individuals and employers must 

attempt to resolve issues directly with USCIS through the 

agency’s available customer service options. These include: 

My Case Status;7 the National Customer Service Center 

(NCSC);8 InfoPass;9 and the e-Service Request tool.10 

Individuals, employers, and their legal representatives are 

now required to indicate prior attempted actions when 

submitting case assistance requests to the Ombudsman. 

In 70 percent of case assistance requests submitted to the 

Ombudsman, individuals and employers first contacted the 

NCSC, while 28 percent appeared at InfoPass appointments 

at a USCIS local field office. See Figure 6: Prior Actions 

Taken. 

The Ombudsman recognizes that individuals and employers 

seeking assistance often have waited long periods of 

time for resolution of their cases. For that reason, the 

Ombudsman recently revised its website content and stated 

its commitment to review all incoming requests for case 

assistance within 30 days and take action to resolve 90 

percent of requests within 90 days of receipt. The revised 

content also makes clear the requirement that individuals 

and employers first avail themselves of the USCIS customer 

service options and wait 60 days past USCIS posted 

processing times before contacting the Ombudsman for 

assistance. Finally, it provides the scope of case review, 

Frequently Asked Questions, and tips to assist individuals 

and employers with filing case assistance requests.11 

See Appendix 3: Ombudsman Scope of Case Assistance. 

When the Ombudsman is not able to resolve a request 

for case assistance using standard protocols, often due to 

pending background checks, the request is escalated to 

USCIS Headquarters. The Ombudsman then works directly 

with USCIS Headquarters officials and monitors the issue 

on a regular basis until it is resolved. The Ombudsman will 

continue to work with USCIS to improve the efficiency and 

effectiveness of this process. 

FIGURE 6: PRIOR ACTIOnS TAKEn 

7 See USCIS Webpage, “My Case Status;” https://egov.uscis.gov/cris/Dashboard/CaseStatus.do (accessed Apr. 3, 2014).
�

8 The National Customer Service Center can be reached at 1-800-375-5283.
�

9 InfoPass is a free online service that allows individuals to schedule an in-person appointment with a USCIS Immigration Services Officer. InfoPass 

appointments may be made by accessing the USCIS Webpage at http://infopass.uscis.gov/ (accessed Mar. 14, 2014).
�

10 USCIS Webpage, “e-Request;” https://egov.uscis.gov/e-Request/Intro.do (accessed Mar. 14, 2014).
�

11 See Ombudsman Webpage, “Ombudsman – Case Assistance, Help with a Pending Application or Petition;” http://www.dhs.gov/case-assistance 

(accessed Apr. 3, 2014). 

Annual Report to Congress – June 2014 5 
 

 

 

 

 

Outreach 

In-Person Engagements 

During this reporting period, the Ombudsman visited 

communities and stakeholders in regions across the United 

States.12 The Ombudsman conducted USCIS site visits and 

meetings with state and local officials, Congressional offices, 

employers and communities with emerging immigrant 

populations. The Ombudsman views in-person engagements 

as essential to its mission and continues to monitor the 

impact of budget limitations. The Ombudsman is committed 

to expanding the use of technology and alternative means 

to interact with the public and USCIS offices around the 

country by holding engagements via video conference 

and teleconference. 

Teleconferences 

To inform stakeholders of new initiatives and receive 

feedback on a variety of topics, the Ombudsman hosted 

the following teleconferences: 

•	�USCIS Customer Service (March 20, 2014) 

•	�Provisional I-601A Waivers (February 21, 2014) 

•	�Naturalization Disability Waivers and Access to Immigration 

Services (January 23, 2014) 

•	�The Ombudsman’s 2013 Annual Report (July 17, 2013) 

•	�The Process after USCIS Approves a U Visa: A Conversation 

with Department of State Representatives 

(June 12, 2013) 

•	�USCIS’s Temporary Suspension of Certain H-2B Adjudications 

(May 30, 2013) 

•	�Fee Waivers at USCIS: How Are They Working for You? 

(April 30, 2013) 

Through in-person engagements and teleconferences, the 

Ombudsman reached thousands of stakeholders. During the 

first two quarters of FY 2014, the Ombudsman conducted 

60 outreach activities and is on pace to complete more than 

150 this year. 

The Ombudsman’s Annual Conference 

Despite the lapse in federal government funding, which 

ceased office operations for over two weeks in October 

2013, the Ombudsman held its third Annual Conference 

on October 24, 2013. Attendees included individuals from 

non-governmental organizations, the private sector and 

federal and state entities. The White House Domestic Policy 

Council Senior Policy Director for Immigration Felicia 

Escobar updated attendees on immigration reform legislative 

developments. The keynote panel featured a discussion 

of approaches and lessons learned from large-scale legal 

services responses. Other panel discussions addressed the 

following areas: challenges in high-skilled immigration; 

autonomy, transparency, and timeliness of decisions at 

the USCIS Administrative Appeals Office; credible fear 

screenings; DHS data systems; and waivers of inadmissibility 

(Provisional Unlawful Presence Waivers).13 

Recommendations and Interagency Liaison 

The Ombudsman is required to identify areas in which 

individuals and employers have problems in dealing with 

USCIS and, to the extent possible, propose changes in 

administrative practices to mitigate these problems. 

Recommendations are developed based on: 

• Trends in requests for case assistance; 

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

communities and immigration professionals from across 

the country; and 

• Information and data gathered from USCIS and 

other agencies. 

On March 24, 2014, the Ombudsman published 

recommendations titled Employment Eligibility for Derivatives 

of Conrad State 30 Program Physicians, which seek to ensure 

that spouses of foreign medical doctors accepted into the 

Conrad State 30 program are able to obtain employment 

authorization. On June 11, 2014, the Ombudsman 

published recommendations titled Improving the Quality 

and Consistency of Notices to Appear, which are the charging 

documents issued by USCIS to initiate removal proceedings. 

12 Northeast: Dewey Beach, DE; NewYork, NY; Jersey City, NJ; and Worcester and Boston, MA. Midwest: Chicago, IL and Kansas City, MO. Mid-Atlantic: 

Baltimore, MD;Washington, D.C.; and Falls Church,VA. Southeast: Macon, GA; Miami, FL; Memphis and Nashville,TN; and Greensboro, Raleigh and 

Charlotte, NC. Southwest: El Paso and Dallas,TX; and Phoenix,Tucson, and Nogales, AZ. West: San Francisco and Los Angeles, CA. 

13 See DHS Blog Posting, “Ombudsman’s Third Annual Conference:Working Together to Improve Immigration Services” (Oct. 24, 2013); http://www.dhs. 

gov/blog/2013/10/24/ombudsman%E2%80%99s-third-annual-conference-working-together-improve-immigration-services (accessed Mar. 14, 2014). 

6 Citizenship and Immigration Services Ombudsman 
DHS systems used to verify immigration status and 

benefits eligibility. 

On March 21, 2013, then-Secretary of Homeland Security 

Janet Napolitano announced the creation of the Council 

for Combating Violence Against Women. Ombudsman 

Odom has served as Acting Co-Chair of this council since 

September 2013. 

On August 29, 2013, Ombudsman Odom was appointed 

the Department’s Chair of the Blue Campaign Steering 

Committee (Blue Campaign), which is the unified voice 

for DHS’s efforts to combat human trafficking. Working in 

collaboration with law enforcement and government, nongovernmental and private organizations, the Blue Campaign 

provides information on training and outreach, how 

traffickers operate and victim assistance. 

The Ombudsman’s Annual Report 

The Ombudsman submits an Annual Report to Congress by 

June 30 of each calendar year, pursuant to section 452(c) of 

the Homeland Security Act. At the time of publication, the 

Ombudsman has not yet received USCIS’s response to the 

2013 Annual Report. 

 

 

 

 

Additionally, the Ombudsman identified five systemic issues 

that were brought to USCIS’s attention through briefing 

papers and meetings with agency leadership. Discussed in 

detail in later sections of this Annual Report, these issues 

pertain to: Special Immigrant Juvenile adjudications; USCIS 

processing times; Agency responses to service requests 

submitted through the Service Request Management Tool; 

USCIS policy and practice in accepting Form G-28, Notice 

of Entry of Appearance as Attorney or Accredited Representative; 

and Challenges in the process for payment of the Immigrant 

Visa Fee. 

Among other activities, the Ombudsman worked to promote 

interagency liaison through: 

• Monthly meetings with DOS and USCIS on the visa queues 

aimed at ensuring the transparent, orderly, and predictable 

movement of Visa Bulletin cut-off dates; and 

• Quarterly data quality working group meetings 

with USCIS, U.S. Customs and Border Protection, 

U.S. Immigration and Customs Enforcement, and the 

DHS Office of the Chief Information Officer to facilitate 

problem-solving related to the Systematic Alien 

Verification for Entitlements (SAVE) program14 and other 

14 The Systematic AlienVerification for Entitlements program is a web-based service that helps federal, state and local benefit-issuing agencies, institutions, 

and licensing agencies determine the immigration status of benefit applicants to ensure only those entitled to benefits receive them. See USCIS Webpage, 

“Systematic AlienVerification for Entitlements” (Nov. 20, 2013); http://www.uscis.gov/save (accessed Apr. 29, 2014). See section of this Report on “Data 

Quality and its Impact on those Seeking Immigration and Other Benefits.” 

Annual Report to Congress – June 2014 7 
 

Key Developments and Areas of Study

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.15 The areas 

of study presented in this year’s Report are organized as follows: 

• Families and Children; 

• Employment; 

• Humanitarian; and 

• Interagency, Process Integrity, and Customer Service. 

15 HSA § 452(c)(1)(B). 

8 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

Families and Children 

Family reunification has long been a pillar of U.S. immigration policy. The USCIS Provisional 

Unlawful Presence Waiver program advances family unity in a concrete and meaningful 

way, and recent guidance addresses some of the most pressing stakeholder concerns. The 

Ombudsman previously made recommendations and continues to bring to USCIS’s attention 

issues with policy and practice in the processing of Special Immigrant Juvenile self-petitions. 

Pervasive and serious problems persist in this area. In the Deferred Action for Childhood 

Arrivals program, USCIS has provided discretionary relief to more than 560,000 individuals 

who were brought to the United States as children. 

Annual Report to Congress – June 2014 9 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Provisional and Other 

Immigrant Waivers of 

Inadmissibility 

Responsible USCIS Offices:16 

Field Operations and Service Center Operations Directorates 

The Provisional Unlawful Presence Waiver program holds 

out the promise of an effective solution to a longstanding 

challenge in family reunification. In 2012, USCIS 

consolidated adjudication of Form I-601, Application for 

Waiver of Grounds of Inadmissibility in one USCIS service 

center rather than allowing adjudications to continue at a 

number of USCIS offices overseas. In 2013, USCIS sought 

to further address the difficulties of the overseas waiver 

process by implementing a stateside provisional waiver for 

immediate relatives of U.S. citizens who are required to travel 

abroad to complete the immigration visa process at a U.S. 

Department of State (DOS) consulate abroad.17 In January 

2014, USCIS issued new guidance crucial to ensuring the 

success of the Provisional Waiver program. 

background 

In 1996, Congress enacted unlawful presence bars that have 

come to be called the “three-year” and “ten-year” bars.18 

16 Homeland Security Act of 2000 § 452(c)(1)(E) requires that the Ombudsman “identify any official of [USCIS] who is responsible” for inaction-related 

Ombudsman recommendations “for which no action has been taken” or USCIS “pervasive and serious problems encountered by individuals and 

employers.” For the first time, in this Annual Report, the Ombudsman identifies the responsible USCIS component. Where more than one USCIS office 

is listed, coordination is needed among USCIS components.
�

17 “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Final Rule,” 78 Fed. Reg. 535-75 (Jan. 3, 2013).
�

18 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208. Immigration and Nationality Act (INA) § 212 (a)(9)
�

(B)(i)(I) is known commonly as the three-year bar, referring to the time an individual is barred from returning to the United States. It is triggered by 

180 days or more of unlawful presence and a departure from the United States, followed by a request for readmission. INA § 212(a)(9)(B)(i)(II) is 

commonly known as the ten-year bar, which is triggered by one year or more of unlawful presence and a departure from the United States, followed by 

a request for readmission.
�

10 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

An individual seeking a waiver of either the three-year or 

ten-year bar must demonstrate to the satisfaction of the 

Secretary of Homeland Security that refusal of admission 

would result in extreme hardship to a qualifying relative 

as a matter of law and in the exercise of discretion.19 

Until June 4, 2012, waivers of the three-year and ten-year 

bars could only be sought by applicants after leaving the 

United States in order to apply for an immigrant visa at 

a DOS consulate abroad.20 This led to lengthy periods of 

family separation since waiver processing took months, if 

not a year or longer, to complete.21 

Since the enactment of the unlawful presence bars, many 

foreign nationals with close family ties in the United States 

have been dissuaded from seeking Lawful Permanent 

Residence. After residing in the United States for many 

years, others traveled abroad for what they hoped would be a 

temporary period, only to encounter prolonged adjudication 

delays or denials of their waiver requests. Even individuals 

approved for such waivers abroad may have been forced 

to endure separation from relatives for months.22 Under 

prior waiver procedures, these applicants had no choice 

but to travel overseas to complete their application for an 

immigrant visa. 

Centralized I-601 Processing. On June 4, 2012, USCIS 

centralized Form I-601 processing at the Nebraska Service 

Center (NSC).23 This was intended to improve consistency 

in decision-making and reduce the time applicants waited 

overseas for waiver decisions while they were completing 

the immigration visa process at a DOS consulate abroad.24 

USCIS announced a processing time target of three months 

for the newly centralized waiver process.25 In February 

2014, USCIS published a processing time of seven months 

for these waivers.26 

19 INA § 212(a)(9)(B)(v). 

20 INA § 245(a) and (c). 

21 See USCIS Webpage, “USCIS to Centralize Filing and Adjudication for Certain Waivers of Inadmissibility in the United States” (May 31, 2012); http:// 

www.uscis.gov/news/uscis-centralize-filing-and-adjudication-certain-waivers-inadmissibility-united-states (accessed May 20, 2013); see also 

Ombudsman Recommendation 45, “Processing of Waivers of Inadmissibility” (Jun. 10, 2010); http://www.dhs.gov/ombudsman-recommendationprocessing-waivers-inadmissibility (accessed Apr. 29, 2014). 

22 Id. “Currently, applicants experience processing times from one month to more than a year depending on their filing location. This centralization will 

provide customers with faster and more efficient application processing and consistent adjudication.” 

23 Id. 

24 Id. 

25 USCIS Webpage, “Form I-601 Centralized Lockbox Filing” (May 14, 2014); http://www.uscis.gov/outreach/notes-previous-engagements/form-i-601-

centralized-lockbox-filing (accessed Jun. 23, 2014). 

26 USCIS Webpage, “USCIS Processing Time Information for the Nebraska Service Center” (Feb. 2014); https://egov.uscis.gov/cris/processingTimesDisplay.do (accessed May 9, 2014). 

27 “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Proposed Rule,” 77 Fed. Reg. 19901 (Jan. 9, 2012). 

28 78 Fed. Reg. 535-75 (Jan. 3, 2013). 

29 Id. 

30 USCIS Webpage, “I-601A, Application for Provisional Unlawful Presence Waiver” (Jun. 27, 2013); http://www.uscis.gov/i-601a 

(accessed Apr. 22, 2014).
�

31 Supra note 28.
�

32 INA § 212(a)(2)(A)(ii).
�

While wait times for decisions have been longer than 

previously announced, the uniformity of filing and 

centralizing adjudication in one USCIS office is a welcome 

development. 

Provisional Waivers. On January 9, 2012, USCIS 

announced its plan to establish a Provisional Waiver 

program.27 Following the publication of proposed 

regulations, a comment period, and the issuance of final 

regulations, the plan took effect on March 4, 2013.28 Now, 

immediate relatives of U.S. citizens, who wish to apply for an 

immigrant visa and who require a waiver of inadmissibility 

for unlawful presence only, are permitted to submit a 

waiver application from within the United States prior to 

departing for an immigrant visa interview at a U.S. embassy 

or consulate abroad.29 Applicants submit Form I-601A, 

Application for Provisional Unlawful Presence Waiver along 

with the appropriate filing fee to a USCIS Lockbox facility in 

Chicago, Illinois.30 Stakeholders welcomed this change and 

deemed it critical to preserving family unity. 

Shortly after implementation, stakeholders raised concerns 

with USCIS’s interpretation of the “reason to believe” 

standard applied when determining whether a provisional 

waiver applicant appears to be inadmissible on grounds 

other than unlawful presence.31 National organizations 

representing immigrants cited denials by USCIS where 

applicants had minor criminal arrests or convictions for 

misdemeanor crimes, such as driving without a license 

or disorderly conduct, without any apparent analysis of 

supporting evidence demonstrating the underlying crime 

would not be a bar to admissibility. In a number of the 

aforementioned cases, USCIS issued summary denials 

without due consideration of whether an applicant’s 

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

offender” exceptions,32 or was not a crime of moral 

Annual Report to Congress – June 2014 11 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

turpitude that would render the applicant inadmissible.33 

Due to these case examples, national organizations appealed 

to the USCIS Director to revise applicable standards.34 

USCIS also denied a number of cases based on fraud or 

misrepresentation grounds of inadmissibility because of the 

applicant’s prior history of encounters with immigration 

authorities.35 These cases were denied without due 

consideration of documentation establishing the nature 

of these prior encounters. For example, the Ombudsman 

reviewed cases where applicants who had been refused entry 

at the border were alleged to have provided a false name or 

date of birth. In some of these cases, the applicant disputed 

that any false information was provided, and instead stated 

that there was a data entry error. Countervailing evidence 

was reportedly not considered, as these provisional waivers 

were summarily denied. In other cases, applicants wished to 

present evidence that the facts of the cases did not satisfy the 

legal definition of “willful misrepresentation of a material 

fact,”36 and thus did not support a denial. These summary 

denials were made without the issuance of Requests for 

Evidence (RFE) or a full examination of the information 

on record. 

The Ombudsman received a number of case assistance 

requests connected with these concerns. Applicants 

requested the Ombudsman’s assistance in obtaining further 

review of summary denials since provisional waiver 

applicants are not permitted to file a motion to reopen/ 

reconsider or an appeal of a denial. 

In August 2013, USCIS suspended adjudication of 4,400 

provisional waiver applications where the agency had 

determined there might be “reason to believe” the applicant 

was inadmissible on a ground other than unlawful 

presence.37 On January 24, 2014, USCIS published a Policy 

Memorandum titled Guidance Pertaining to Applicants for 

Provisional Unlawful Presence instructing adjudicators to 

review all information in the record, taking into account 

the nature of a particular charge or conviction as well as the 

ultimate disposition, before making a final determination of 

whether there is “reason to believe” criminal inadmissibility 

grounds apply.38 

On February 7, 2014, Ombudsman Odom sent a letter to 

the USCIS Acting Director noting the new “clear, consistent 

standard for adjudicators to apply to future provisional 

waiver cases” but also describing stakeholder concerns 

related to reopening cases previously denied and revisiting 

guidance on fraud and willful misrepresentation.39 On 

March 18, 2014, USCIS announced that it would reopen 

under its own motion provisional waiver applications 

that had been denied prior to January 24, 2014, solely on 

the basis that a criminal offense might pose a “reason to 

believe” that the applicant was inadmissible.40 Thereafter, 

USCIS moved the 4,400 “reason to believe” provisional 

waiver applications that had been placed on hold back into 

the normal flow of work for adjudication at the National 

Benefits Center.41 

Ongoing Concerns 

USCIS’s new guidance addresses the most pressing 

stakeholder concerns, and the Ombudsman will closely 

monitor implementation. There are other aspects of the 

provisional waiver process that remain problematic, such 

as denials where USCIS found the applicant inadmissible 

for fraud or a willful misrepresentation without a full 

examination of the information contained in the record.42 

The Ombudsman has urged USCIS to issue guidance 

specifying the nature and type of evidence required to 

support a finding of inadmissibility under the Immigration 

and Nationality Act section 212(a)(6)(C)(i), and to afford 

applicants an opportunity to present new evidence and 

33 INA § 212(a)(2)(A)(i)(I). 

34 Letter from the American Immigration Lawyers Association to USCIS Director Mayorkas (Aug. 6, 2013); Letter from the Catholic Legal Immigration 

Network to USCIS Director Mayorkas (Aug. 5, 2013).
�

35 INA § 212(a)(6)(C)(i) provides that “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure 

or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the [INA] is inadmissible.”
�

36 INA § 212(a)(6)(C)(i).
�

37 Information provided by USCIS (Sept. 19, 2013).
�

38 USCIS Policy Memorandum, “Guidance Pertaining to Applicants for Provisional Unlawful Presence” (Jan. 24, 2014); http://www.uscis.gov/sites/
�

default/files/files/nativedocuments/2014-0124_Reason_To_Believe_Field_Guidance_Pertaining_to_Applicants_for_Provisional_Unlawful_Presence_Waivers-final.pdf (accessed Apr. 21, 2014). The Policy Memorandum states, “USCIS officers should review all evidence in the record, including any 

evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) 

falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not 

a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that 

the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of 

that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the 

provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.”
�

39 Letter from Ombudsman Odom to USCIS Acting Director Lori Scialabba (Feb. 7, 2014).
�

40 USCIS Public Engagement Division, Message: Form I-601A, Provisional Unlawful Presence Waiver (Mar. 18, 2014).
�

41 Information provided by USCIS (Apr. 28, 2014).
�

42 See INA § 212(a)(6)(C)(i).
�

12 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

request reconsideration of cases previously denied for fraud 

or willful misrepresentation of a material fact.43 

Special Immigrant Juveniles 

Responsible USCIS Offices: 

Field Operations Directorate, Office of Policy and Strategy, 

and Office of Chief Counsel 

In this Annual Report section, the Ombudsman raises 

concerns with USCIS’s interpretation and application of 

its Special Immigration Juvenile (SIJ) “consent” authority. 

This interpretation has led to unduly burdensome and 

unnecessary RFEs for information concerning underlying 

state court orders, and ultimately denials in some cases. 

Other issues reported to the Ombudsman include USCIS 

questioning state court jurisdiction, concerns with age-outs 

and decisions for individuals nearing age 21, and ensuring 

child appropriate interviewing techniques. The Ombudsman 

brought these issues to USCIS’s attention and presented 

initial recommendations calling for clarification of policy 

and for centralized SIJ adjudication to improve consistency. 

background 

In 1990, Congress established the SIJ category to provide 

protection to children without legal immigration status.44 

For a child to be eligible for SIJ status, a juvenile court 

must declare the child to be dependent on the court or 

legally commit the child to the custody of a state agency or 

an individual appointed by a state or juvenile court. The 

court must also declare the child cannot be reunited with 

one or both of his or her parents due to abuse, neglect, or 

abandonment.45 In addition, an administrative or judicial 

proceeding must have determined it would not be in the 

best interests of the child to be returned to the child’s or 

parents’ country of citizenship or last habitual residence.46 

In 1997, Congress amended the SIJ definition to safeguard 

the process from fraud or abuse by including only those 

juveniles deemed eligible for long-term foster care.47 

The amendment also required the “express consent” of the 

Attorney General (now the Secretary of Homeland Security) 

“to the dependency order serving as a precondition to 

the grant of [SIJ] status.”48 By making these amendments, 

Congress aimed “to limit the beneficiaries ... to those 

juveniles for whom it was created, namely abandoned, 

neglected, or abused children, by requiring the Attorney 

General to determine that neither the dependency order 

nor the administrative or judicial determination of the 

alien’s best interest was sought primarily for the purpose 

of obtaining [immigration] status ... rather than for the 

purpose of obtaining relief from abuse or neglect.”49 With 

these amendments, Congress also sought to address concerns 

for potential abuse in the SIJ program by restricting grantees 

from later petitioning for their parents.50 

USCIS published final SIJ regulations in 1993, recognizing 

that it “would be both impractical and inappropriate for the 

Service to routinely re-adjudicate judicial or social service 

agency administrative determinations ...”51 USCIS then 

43 Supra note 39.
�

44 Immigration Act of 1990, Pub. L. No. 101–649 at § 153(a)(3)(J), 104 Stat 4978 (Nov. 29, 1990). Historically, U.S. government efforts to protect 

children resulted in a gap for immigrant children who were protected during their childhood but grew into adults with no legal immigration status.
�

See generally “Regulating Consent: Protecting Undocumented Immigrant Children from their (Evil) Step-Uncle Sam, or How to Ameliorate the Impact 

of the 1997 Amendments to the SIJ Law,” Angela Lloyd, 15 B.U. Pub. Int. L.J. 237, at 1.
�

45 INA § 101(a)(27)(J).
�

46 Id. 

47 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, § 113, 111 Stat.
�

2440 (Nov. 26, 1997); see Gao v. Jenifer 185 F.3d 548, at 552 (1999).
�

48 Id.
�

49 H.R. Conf. Rep. 105-405, at 130 (Nov. 13, 1997).
�

50 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, § 113, 111 Stat.
�

2440 (Nov. 26, 1997); Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court; Revocation of Approval of Petitions; Bona Fide 

Marriage Exemption to Marriage Fraud Amendments; Adjustment of Status; 58 Fed. Reg. 42843-51, 42847 (Aug. 12, 1993).
�

51 Special Immigrant Status; Certain Aliens Declared Dependent on a Juvenile Court; Revocation of Approval of Petitions; Bona Fide Marriage Exemption to 

Marriage Fraud Amendments; Adjustment of Status; 58 Fed. Reg. 42843-51, Supplemental Information at 42847 (Aug. 12, 1993). 

Annual Report to Congress – June 2014 13 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

issued policy memoranda in 1998 and 1999, instructing 

adjudicators to request information necessary to make 

independent findings regarding abuse, abandonment, neglect 

and best interests.52 In 2004, USCIS issued a third Policy 

Memorandum, instructing adjudicators to examine state 

court orders for independent assurance that courts acted 

in an “informed” way.53 The memorandum also provided 

that adjudicators should not “second-guess” findings made 

by state courts because “express consent is limited to the 

purpose of determining [SIJ] status, and not for making 

determinations of dependency status.”54 However, in that 

memorandum, USCIS instructed adjudicators to give express 

consent only if the adjudicator was aware of the facts that 

formed the basis for the juvenile court’s rulings. 

The 2008 TraffickingVictims Protection Reauthorization Act 

(TVPRA) again amended the SIJ statute.55 TVPRA clarified 

that the Secretary of Homeland Security must consent to 

the grant of SIJ status, and not to the dependency order 

serving as a precondition to a grant of SIJ status.56 TVPRA 

thus recognized state court authority and “presumptive 

competence”57 over determinations of dependency, abuse, 

neglect, abandonment, reunification, and best interests of 

children. In addition,TVPRA removed the need for a state 

court to determine eligibility for long-term foster care and 

replaced it with a requirement that the state court determine 

whether reunification with one or both parents is viable.58 

In 2010 and 2011, stakeholders reported receiving RFEs 

from USCIS asking for detailed information regarding the 

underlying state court order. Stakeholders also reported 

age-inappropriate interviewing techniques by immigration 

officers, such as, use of language that is not suitable for 

children. They recounted problems with USCIS not 

meeting statutory processing times, a lack of procedures 

for requesting expedited review of SIJ petitions for those 

in jeopardy of aging-out of eligibility, and repeated denials 

of fee waiver requests in cases where applicants appeared 

to be prima facie eligible. These concerns prompted the 

Ombudsman to issue formal recommendations in April 

2011.59 Since the publication of these recommendations, 

the Ombudsman has continued providing USCIS with 

stakeholder feedback, examples of problem cases, and other 

information relevant to improving SIJ adjudication. In 2012, 

USCIS partnered with state courts to train judges on the 

SIJ process.60 

On February 27, 2014, USCIS held a “train-the-trainer” 

session for regional selectees who then provided training 

to USCIS adjudicators in the field. All USCIS officers 

adjudicating SIJ petitions are now required to take this 

training. The new training module includes instruction on 

USCIS’s consent requirement and directs adjudicators to 

accept court orders containing or supplemented by specific 

findings of fact. The training offers a sample court order that 

adequately represents the type of factual findings required in 

a juvenile state court order. The written training, however, 

states that adjudicators may issue an RFE “if the record 

does not reflect that there was a sufficient factual basis for 

the court’s findings.” (emphasis added).

61 This instruction 

is inconsistent with the supplementary training materials, 

which present sample court orders that do not have 

exhaustive factual findings, but satisfy USCIS’s limited role 

of verifying that a state court has made the requisite SIJ 

findings. As a result, stakeholders continue to receive 

problematic RFEs and denials reflecting adjudicators’ overly 

expansive search for records supporting the factual findings 

52 Immigration and Naturalization Service Policy Memorandum, “Special Immigrant Juveniles - Memorandum #2: Clarification of Interim Field Guidance” (Jul. 9, 1999); http://www.uscrirefugees.org/2010Website/5_Resources/5_4_For_Lawyers/5_4_2_Special_Immigrant_Juvenile_Status/5_4_2_3_Published_Decisions_and_Memoranda/Cook_Thomas_SpecialImmigrantJuvenilesMemorandum.pdf (accessed Jun. 18, 2014). 

53 USCIS Interoffice Memorandum, “Memorandum #3 -- Field Guidance on Special Immigrant Juvenile Status Petitions” (May 27, 2004); http://www. 

uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/sij_memo_052704.pdf (accessed 

Jun. 18, 2014). 

54 Id. 

55 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) §235(d)(1), Pub. L. No. 110-457, 122 Stat. 5044 (2008).
�

56 TVPRA § 235(d)(1).
�

57 Gao v. Jenifer 185 F.3d 548 (1999) at 556 citing Holmes Fin. Assocs. v. Resolution Trust Corp., 33. F.3d 561, 565 (6th Cir. 1994).
�

58 TVPRA § 235(d)(1)(B).
�

59 Ombudsman Recommendation 47, “Special Immigrant Juvenile Adjudications: An Opportunity for Adoption of Best Practices” (Apr. 15, 2011); http://
�

www.dhs.gov/xlibrary/assets/Citizenship-and-Immigration-Services-Ombudsman-Recommendation-Special-Immigrant-Juvenile-Adjudications.pdf 

(accessed Mar. 19, 2014). The Ombudsman recommended that USCIS: (1) standardize its practices of: (a) providing specialized training for those 

officers adjudicating Special Immigrant Juvenile (SIJ) status; (b) establishing dedicated SIJ units or Points of Contact (POCs) at local offices; and (c) 

ensuring adjudications are completed within the statutory timeframe; (2) cease requesting the evidence underlying juvenile court determinations of foreign child dependency; and (3) issue guidance, including agency regulations, regarding adequate evidence for SIJ filings, including general criteria 

for what triggers an interview for the SIJ petition, and make this information available on the USCIS website.
�

60 Supra note 41.
�

61 USCIS SIJ Training (Feb. 27, 2014).
�

14 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of state courts, including full court transcripts, and, in some 

cases, any and all evidence submitted in the underlying 

proceeding.62 

Case Example 

In May 2014, the Ombudsman received a request 

for case assistance involving an SIJ-based RFE issued 

subsequent to the release of USCIS’s new field 

training. In this case, the state court order presented 

by the petitioner appeared to include requisite 

factual findings for SIJ eligibility. However, the 

adjudicator issued an RFE requesting the following: 

“a copy of the original application for guardianship, 

a complete transcript of any hearing held in front of 

any judge regarding your temporary or permanent 

guardianship, copies of any and all documents 

submitted to any judge during any hearing regarding 

your guardianship.” (emphasis added) 

Ongoing Concerns 

USCIS Interpretation of Consent. The Ombudsman 

continues to receive reports and requests for case assistance 

from stakeholders where USCIS has called into question the 

validity of court orders and their content by: 

• Requesting that petitioners provide information and/or 

documents that substantiate a state court order; 

• Raising concerns of alleged fraud or misrepresentation in 

the state court process, particularly in cases dealing with 

reunification with one parent, as permitted by TVPRA;63 

• Reinterpreting state law by deeming that a particular 

state court did not have jurisdiction to issue a dependency 

order; and 

• Refusing to accord “full faith and credit” to a state court 

order issued in a state different from the petitioner’s 

current state of residence.64 

The Ombudsman received and continues to evaluate 

other emerging SIJ issues, including USCIS’s adherence 

to its obligations under the 2005 Perez-Olano settlement 

agreement.65 Under this settlement, the agency committed 

not to deny or revoke any new, pending, or reopened SIJ 

petition “on account of age or dependency status, if, at the 

time the class member files or filed a complete application 

for SIJ classification, he or she was under 21 years of age 

or was the subject of a valid dependency order that was 

subsequently terminated based on age.” SIJ regulations 

have historically protected children under 21 years of age to 

“minimize confusion caused by dissimilar state laws” and to 

“allow students and other young persons who continue to 

be dependent upon the juvenile court after reaching the age 

of eighteen to qualify for SIJ status.”66 

The Ombudsman will continue to monitor and work to 

address SIJ issues with USCIS. In the coming year, the 

Ombudsman may issue additional recommendations calling 

for the agency to: 1) clarify its limited consent authority; 

and 2) centralize SIJ adjudication to improve quality and 

consistency of decisions. 

The Deferred Action for 

Childhood Arrivals Program 

Responsible USCIS Office: 

Service Center Operations Directorate 

Nearly two years since the inception of the Deferred Action 

for Childhood Arrivals (DACA) program, USCIS has approved 

over 560,000 DACA applications for individuals who were 

brought to the United States as children.67 Through this 

program, thousands of young people now have the ability 

to continue their education and work lawfully in the United 

States. DACA represents approximately 15 percent of the 

requests for case assistance received by the Ombudsman 

during this reporting period. Many of these cases are 

pending beyond USCIS’s six-month processing goal due 

to background checks. In other cases, USCIS has issued 

template denials that provide limited information as to the 

basis for denial. 

62 Such Requests for Evidence (RFEs) raise privacy concerns. In many states, providing records of juvenile proceedings would be a violation of state 

confidentiality laws. See e.g., N.J.S.A. 9:2-1, 9:2-3 (“The records of such proceedings, including all papers filed with the court, shall be withheld from 

indiscriminate public inspection, but shall be open to inspection by the parents, or their attorneys, and to no other person except by order of the court 

made for that purpose.”) New Jersey Rule, R. 1:38-3(d)(13), excludes from public access: “Child custody evaluations, reports, and records pursuant to 

... N.J.S.A. 9:2-1, or N.J.S.A. 9:2-3.” Additionally, juvenile court records often contain information not only about the SIJ applicant, but also about siblings 

and other persons who are not before USCIS. These RFEs also impose significant burdens on counsel who, in many cases, would have to seek special permission from the state court to disclose such documents.
�

63 TVPRA § 235(d)(1)(A).
�

64 U.S. Constitution, Art. IV, Sec. 1.
�

65 Perez-Olano, et al. v. Holder, Case No. CV-05-3604 at 8 (C.D. Cal. 2005).
�

66 58 Fed. Reg. 42843-01, Supplemental Information at *42847 (Aug. 12, 1993); Departments of Commerce, Justice, and State,The Judiciary, and Related 

Agencies Appropriations Act of 1998, Pub. L. 105-119, § 113, 111 Stat. 2440 (Nov. 26, 1997).
�

67 See USCIS Webpage, “Secretary Johnson Announces Process for DACA Renewal” (Jun. 5, 2014); http://www.uscis.gov/news/secretary-johnson-announces-process-daca-renewal (accessed Jun. 18, 2014).
�

Annual Report to Congress – June 2014 15 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

background 

On June 15, 2012, the Secretary of Homeland Security 

announced that certain individuals who came to the United 

States as children and meet several requirements may request 

deferred action under the DACA program.68 Within 60 

days of the announcement and following robust public 

engagement, USCIS implemented a process for receiving, 

reviewing, and adjudicating DACA requests.69 

As of March 10, 2014, individuals submitted 658,430 

DACA applications and USCIS granted 542,479 of these 

requests. See Figure 7: Deferred Action for Childhood Arrivals 

Adjudication Data. 

Ongoing Concerns 

The Ombudsman has identified issues in DACA processing 

based on requests for case assistance, feedback from 

stakeholders, and information provided by USCIS. 

FIGURE 7: DEFERRED ACTIOn FOR CHILDHOOD ARRIvALS ADjUDICATIOn DATA

120,000

100,000

80,000

60,000

40,000

20,000

0

Apr­13 May­13 Jun­13 Jul­13 Aug­13 Sep­13 Oct­13 Nov­13 Dec­13 Jan­14 Feb­14

CUMULATIvE TOTAL 

Receipts 628,937 

Under review 18,928 

Approved 542,479 

Denied 18,932 

Source: Information provided by USCIS (Apr. 28, 2014). 

FIGURE 8: DEFERRED ACTIOn FOR CHILDHOOD ARRIvALS CASES PEnDInG PAST SIx MOnTHS 

 

4,000
 

3,500
 

3,000
 

2,500
 

2,000
 

1,500
 

1,000
 

500
 

0
 

nUMbER OF CASES PEnDInG 

7 Months 8 Months 9 Months 10 Months 11 Months 12 Months 13 Months 14 Months 15 Months 16 Months 17 Months 18 Months 

Source: Information provided by USCIS (Apr. 28, 2014). 

Includes data through March 7, 2014.
	

68 DHS Press Release, “Secretary Napolitano Announces Deferred Action Process forYoung People Who Are Low Enforcement Priorities” (Jun. 15, 2012);
�

https://www.dhs.gov/news/2012/06/15/secretary-napolitano-announces-deferred-action-process-young-people-who-are-low 

(accessed Apr. 29, 2014).
�

69 See USCIS Webpage, “Consideration of Deferred Action for Childhood Arrivals Process” (Apr. 9, 2014); http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process, (accessed May 12, 2014). See e.g., USCIS Public Engagement, “Deferred Action for Childhood Arrivals 

Stakeholder Conference Call” (Nov. 21, 2012); http://www.uscis.gov/outreach/notes-previous-engagements/deferred-action-childhood-arrivals-stakeholder-conference-call (accessed Apr. 3, 2013).
�

16 Citizenship and Immigration Services Ombudsman
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Processing Times. Approximately seven months after the 

official start of the DACA program, USCIS announced a 

six-month processing time for all DACA applications.70 

While processing started at all four USCIS service centers, 

in February 2013, USCIS centralized most of the DACA 

workload at the NSC.71 USCIS also shifted resources in 

response to declining DACA receipts and to address a 

growing backlog of Forms I-130, Petition for Alien Relative 

filed for immediate relatives. As of January 6, 2014, there 

were 71,949 DACA cases pending with USCIS service centers 

for more than six months (with 66,470 of these cases 

pending at the NSC),72 31 percent pending background 

checks, and 25 percent pending due to issuance of Requests 

for Evidence.73 See Figure 8: Deferred Action for Childhood 

Arrivals Cases Pending Past Six Months. USCIS provided data 

to the Ombudsman showing that as of May 16, 2014, there 

were 12,061 DACA cases pending past six months, with 

17 percent pending background checks and 8 percent 

pending RFEs. 

The majority of DACA-related requests for case assistance 

received by the Ombudsman pertain to cases outside 

published processing times, many of which have been 

pending for a year or more. A large number of cases are 

on hold due to pending policy guidance on issues such as 

education accreditation.74 The NSC increased its staffing 

for the DACA unit to a total of 150 adjudicators by April 

2014. USCIS acknowledged the additional adjudicators 

were needed to handle delays in processing background 

checks. The agency also allocated additional resources at 

the NSC to address individual DACA cases that were delayed 

due to background checks. It anticipated most backlogged 

cases would be resolved by the end of May 2014.75 The 

Ombudsman will continue to monitor DACA processing 

times as the program enters its first renewal period. 

Template Denials. USCIS issued many DACA denial notices 

using template letters wherein adjudicators select a box 

from a list identifying the general basis for denial. However, 

the narrative language accompanying the check boxes is 

often limited and vague, and does not provide applicants 

a reason for the denial of the DACA application. 

According to USCIS, adjudicators are to issue an RFE or 

Notice of Intent to Deny (NOID) before denying a DACA 

application. The largest categories for RFEs pertain to the 

following eligibility requirements: continuous residence, 

current enrollment in school, and physical presence in the 

United States on June 15, 2012.76 The Ombudsman received 

case assistance requests for DACA applications where, 

inconsistent with agency policy, USCIS did not issue an RFE 

or NOID prior to the denial, which is concerning since 

there is no formal appeal process or option for a motion 

to reopen/reconsider for DACA denials. Individuals may 

request review of the denial decision through the Service 

Request Management Tool process if they can demonstrate 

that: 1) USCIS incorrectly denied the application based on 

abandonment, or 2) USCIS mailed the RFE to the wrong 

address.77 USCIS has reopened 1,656 cases for these 

reasons.78 Otherwise, the only other recourse for applicants 

is to file a new application and pay the $465 filing fee again. 

Employment Authorization Documents and Mailing 

Issues. Stakeholders have raised concerns about Employment 

Authorization Documents (EADs) issued following the 

approval of a DACA application. While the U.S. Postal 

Service shows the document as “delivered,” some applicants 

report they never received their EADs. In most cases, 

USCIS requires the applicant to pay an additional $85 for 

the biometrics fee in order to obtain a replacement card. 

Currently, USCIS has no plans to begin mailing EADs via 

certified mail. The Ombudsman will be reviewing USCIS 

EAD mailing issues in the coming year. 

DACA Renewals. Applicants began applying for DACA, with 

two-year grants of deferred action and EADs, on August 15, 

2012. The renewal process begins in summer 2014. Most 

DACA renewals will be adjudicated at the NSC. 

70 USCIS Webpage, “USCIS Processing Time Information” (May 6, 2014); https://egov.uscis.gov/cris/processTimesDisplay.do (accessed May 8, 2014).
�

71 USCIS shifted resources to address growing backlogs of immediate relative Forms I-130, Petition for Alien Relative. Supra note 41.
�

72 Information provided by USCIS (Jan. 30, 2014).
�

73 Id. 

74 Information provided by USCIS (Mar. 23, 2014, Apr. 9, 2014 and Apr. 28, 2014).
�

75 Information provided by USCIS (Apr. 9, 2014 and Apr. 28, 2014). USCIS noted that more complex background check cases may take longer than six 

months to process.
�

76 Id. 

77 USCIS Webpage, “Frequently Asked Questions” (Dec. 6, 2013); http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (accessed May 9, 2014). There are no other bases to reopen denied Deferred Action for Childhood Arrivals 

applications. 

78 Supra note 41. 

Annual Report to Congress – June 2014 17 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On December 18, 2013, USCIS published a notice of 

proposed revisions to Form I-821D, Consideration of Deferred 

Action for Childhood Arrivals (DACA) and instructions in the 

Federal Register.79 Multiple stakeholders provided feedback 

on the proposed revisions, requesting that USCIS: 1) 

simplify parts of the form, 2) make explicit the evidentiary 

requirements for DACA renewal, and 3) adjust the 

instruction to file a renewal application four months prior to 

the expiration of the applicant’s DACA period to account for 

the current six-month processing time.80 

Following this comment period, USCIS published a second 

revised DACA form on April 4, 2014, which was available 

for comment until May 5, 2014.81 The revised form 

addresses the aforementioned concerns such as the narrow 

renewal period; USCIS extended it from 120 days to 150 

days.82 Additionally, USCIS updated its DACA website 

page to include preliminary information regarding the 

renewal process.83 

USCIS Community Outreach. USCIS recognizes there 

may be individuals eligible to request DACA benefits who 

have not yet come forward. The agency plans to expand the 

reach of the DACA program through the development of 

educational materials in multiple languages and the use of 

social media and digital engagement to reach individuals in 

remote locations.84 USCIS will also collaborate with teachers, 

parent associations, employers, and other nontraditional 

stakeholders who can serve as liaisons to hard-to-reach 

immigrant communities. 

Conclusion 

USCIS’s improvements in the Provisional Unlawful Presence 

Waiver program serve to advance consistency and minimize 

delays for thousands of individuals and their families. The 

Ombudsman urges USCIS to study issues presented in this 

Annual Report related to SIJs and USCIS’s limited “consent” 

authority. USCIS has demonstrated through DACA that 

the agency can successfully operationalize discretionary 

decision-making, by establishing formal filing procedures 

and processing protocols, including posted processing 

times. The Ombudsman encourages USCIS to do the same 

to address long-standing issues in the processing of nonDACA deferred action requests. The Ombudsman continues 

to engage with the DACA community and legal service 

providers, and to work to resolve long pending cases, as the 

renewal process begins. 

79 “Agency Information Collection Activities: Consideration of Deferred Action for Childhood Arrivals, Form I-821D; Revision of a Currently Approved 

Collection,” 78 Fed. Reg. 76636 (Dec. 18, 2013).
�

80 Letter from the American Immigration Council to USCIS, “Re: Agency Information Collection Activities: Consideration of Deferred Action for Childhood 

Arrivals, Form I-821D; Revision of a Currently Approved Collection, OMB Control Number 1615-0124, 78 Fed. Reg. 76636 (Dec. 18, 2013)” (Feb. 18,
�

2014); Letter from the Catholic Legal Immigration Network to USCIS, “Re: Agency Information Collection Activities: Consideration of Deferred Action for 

Childhood Arrivals, Form I-821D; Revision of a Currently Approved Collection” (Feb. 14, 2014).
�

81 79 Fed. Reg. 18925 (Apr. 4, 2014).
�

82 Id. USCIS plans to send notice in a postcard to applicants reminding them of the renewal period, but the exact time notice will be sent is unclear.
�

83 USCIS Webpage, “Consideration of Deferred Action for Childhood Arrivals Process” (Apr. 9, 2014); http://www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-process (accessed May 16, 2014). Both the draft Form I-821D and the information on the USCIS Webpage are subject 

to change until the form and renewal process are finalized.
�

84 Supra note 41.
�

18 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

Employment 

U.S. employment-based immigration programs are designed to foster economic growth, 

respond to labor market needs and improve U.S. global competitiveness. The Ombudsman 

is pleased to report on progress in the EB-5 Immigrant Investor program. However, as 

discussed in prior Ombudsman Annual Reports, there are longstanding issues with USCIS 

policy and practice in the high-skilled categories, as well as emerging issues in the seasonal 

and agricultural programs. 

Annual Report to Congress – June 2014 19 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Highly Skilled Workers: 

Longstanding Issues 

with H-1B and L-1 Policy 

and Adjudications 

Responsible USCIS Offices: 

Service Center Operations Directorate and Office of Policy 

and Strategy 

Stakeholders continue to report concerns regarding the 

quality and consistency of adjudications of high-skilled 

petitions. There are ongoing issues with the application of 

the preponderance of the evidence legal standard and gaps in 

policy. Stakeholders cite redundant and unduly burdensome 

Requests for Evidence (RFEs), and data reveal an RFE rate of 

nearly 50 percent for L-1B petitions and nearly 43 percent 

for L-1A petitions in the first half of FiscalYear (FY) 2014.85 

Employers continue to seek the Ombudsman’s assistance to 

resolve individual case matters and systemic issues in highskilled adjudications. 

background 

Start-up firms, U.S. and international companies, and academic 

institutions use high-skilled visa programs to hire or transfer 

foreign employees to work in U.S. offices. Most employers 

seeking to employ a foreign national in a high-skilled 

occupation use one of the following visa programs: 

the H-1B (Specialty Occupation), L-1A (Intracompany 

Transferee Manager or Executive) and L-1B (Specialized 

Knowledge). In the past four years, USCIS issued policy 

guidance for the H-1B program,86 and drafted much needed 

guidance for the L-1B program that remains pending. 

85 Information provided by USCIS (Apr. 28, 2014 and May 29, 2014). 

86 USCIS Policy Memorandum, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site 

Placements” (Jan. 8. 2010); http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20 

Memo010810.pdf (accessed May 16, 2014). USCIS Policy Memorandum, “H-1B Anti-Fraud Initiatives—Internal Guidance and Procedures in 

Response to Findings Revealed in H-1B Benefit Fraud and Compliance Assessment” (Oct. 31, 2008). 

20 Citizenship and Immigration Services Ombudsman 
Requests for Evidence. USCIS RFE rates have continued to 

rise in recent years. See Figure 9: H-1B, L-1A and L-1B 

RFE Rates. Issuance of unnecessary RFEs is inefficient for 

USCIS because they interrupt normal processing and require 

adjudicators to review cases more than once. The agency 

also incurs administrative costs for storing, retrieving, and 

matching files with RFE responses after they are submitted. 

For petitioners, RFEs can disrupt business operations and 

planning, and result in delays for product development or 

client services. For beneficiaries and their families who 

depend on timely adjudication, RFEs can negatively impact 

arrangements to move to or within the United States, the 

transition to their children’s schools, and the significant life 

choices and commitments foreign nationals make when 

accepting employment in the United States. Additionally, 

the issuance of unduly burdensome RFEs erodes stakeholder 

confidence in the agency’s adjudications and increases the 

legal costs associated with these filings. 

The following is an example of such an RFE, which was 

issued to more than one petitioner by both the California 

Service Center (CSC) andVermont Service Center (VSC) for 

L-1A extensions. 

USCIS acknowledges that you filed this petition to extend 

the [stay of a] beneficiary admitted to the United States 

under an L blanket petition. Thus, the beneficiary’s 

qualifications and duties in the managerial capacity 

have not been examined by USCIS, and the record is 

insufficient to establish that the position qualifies for the 

classification ...Your submitted written statement was not 

corroborated by evidence in the record. You may still submit 

evidence to satisfy this requirement, [including] but not 

limited to: 

•	�A letter from an authorized representative in the U.S. 

entity describing the beneficiary’s expected managerial 

decisions. The letter should describe the beneficiary’s 

typical managerial duties, and the percentage of time to 

be spent on each. In addition, the letter should address: 

–	�How the beneficiary will manage the organization ... 

 or component of the organization; 

–	�How the beneficiary will supervise and control the 

 work of other supervisory, professional or managerial 

 employees or manage an essential function ... 

–	�Whether the beneficiary will have authority to hire 

 and fire, or recommend similar personnel actions ... 

 if other employees will be directly supervised ... 

–	�How the beneficiary will make decisions on daily 

 operation of the activity or function under his or her 

 authority. If the beneficiary will be a first-line 

 supervisor, submit evidence showing the supervised 

 employees will be professionals. 

•	�An organizational chart or diagram showing the 

U.S. entity’s organizational structure and staffing 

levels. The chart or diagram should list all 

employees in the beneficiary’s immediate division, 

department or team by name, job title, and 

summary of duties, educational level, and salary ... 

•	�Copies of the U.S. entity’s payroll summary, and
� 

Forms W-2, W-8 and 1099-Misc showing wages 

paid to all employees under the beneficiary’s
� 

direction. 

•	�Copies of all employment agreements entered into
� 

by newly hired employees who will be managed by
� 

the beneficiary. 

In one case, the petitioner responded to this RFE but 

excluded the list of all employees, their payroll summaries 

and employment agreements, noting that it considered this 

information confidential and proprietary. The petitioner 

did provide alternative evidence to establish the bona fides of 

the petition, describing the beneficiary’s duties in the U.S. 

position, organizational charts showing the positions and 

educational degrees held by employees, and copies of the 

evaluations the beneficiary issued to direct reports. USCIS’s 

denial decision stated: 

According to the chart provided, it appears that the 

beneficiary’s position ... may oversee fourteen employees with 

professional degrees. However, USCIS notes that, although 

specifically requested, employee names and quarterly reports 

were intentionally omitted by the petitioner, citing company 

policy. Without the requested information or similar 

documentary evidence, USCIS cannot determine whether 

the subordinates managed by the beneficiary exist. For the 

forgoing reasons ... [t]he burden of proof ... has not 

been met. 

This RFE is unduly burdensome and demands confidential, 

propriety information. The petitioner in this case is a large 

well-established firm, and the beneficiary had already worked 

for the petitioner for three years as a manager in the United 

States at the time the extension was submitted. When the 

Ombudsman inquired about this RFE, USCIS responded 

that the RFE was appropriate, but after repeated discussions 

agreed to review the denial, reopened the matter, and issued 

an approval. 

On June 3, 2013, USCIS issued a Policy Memorandum titled 

Requests for Evidence and Notices of Intent to Deny.87 USCIS 

instructed adjudicators to issue an RFE only if “the officer 

determines that the totality of the evidence submitted does 

not meet the applicable standard of proof.”88 Otherwise, the 

adjudicator should approve or deny the petition.89 

Annual Report to Congress – June 2014	� 21 
 

 

 

 

 

 

 

 

FIGURE 9: H -1b, L -1A, AnD L -1b RFE RATES 

 H-1b RFE RATE 100 RFE % OF TOTAL RECEIPTS

California Service Center (CSC) Vermont Service Center (VSC) 

00 01 02 03 04 05 06 07 08 09 10 11 12 13 14*

80

60

40

20

0

FISCAL yEAR 

 

L-1A RFE RATE 100 RFE % OF TOTAL RECEIPTS

California Service Center (CSC) Vermont Service Center (VSC) 

00 01 02 03 04 05 06 07 08 09 10 11 12 13 14*

80

60

40

20

0

FISCAL yEAR 

 

 

L-1b RFE RATE 100 RFE % OF TOTAL RECEIPTS 

California Service Center (CSC) Vermont Service Center (VSC) 

00 01 02 03 04 05 06 07 08 09 10 11 12 13 14*

80

60

40

20

0

FISCAL yEAR 

Source: Information provided by USCIS (Nov. 23, 2009; Jan. 26, 2011; May 18, 2011; Apr. 4, 2013; May 29, 2014). 

* FY 2014 includes data through March 23, 2014. 

87 USCIS Policy Memorandum, “Requests for Evidence and Notices of Intent to Deny” (Jun. 3, 2013); http://www.uscis.gov/sites/default/files/USCIS/ 

Laws/Memoranda/2013/June%202013/Requests%20for%20Evidence%20%28Final%29.pdf (accessed Jun. 2, 2014). The USCIS Policy Memorandum was 

issued in response the U.S. Department of Homeland Security Office of Inspector General (OIG) Report, “The Effect of USCIS Adjudication Procedures and 

Policies on Fraud Detection by Immigration Services Officers” (Jan. 5, 2012); http://www.oig.dhs.gov/assets/Mgmt/OIG_12-24_Jan12.pdf (accessed 

Jun. 2, 2014). 

88 Id., p. 2. 

22 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

Despite issuance of clarifying guidance nearly a year ago, 

RFE rates in high-skilled visa programs have remained 

high through the first half of FY 2014. The Ombudsman 

continues to review case assistance requests with RFEs such 

as the following: 

The evidence you submitted is insufficient to show that 

the U.S. entity is currently doing business. You submitted 

a print out from the website of the Secretary of the 

Commonwealth of Massachusetts that the U.S. entity was 

organized on July 12, 2012. In the petition, there is a 

2012 Form Schedule C for the U.S. entity. You submitted 

a sublease agreement for the U.S. entity’s premise, but the 

space is “residency type.” The evidence is also insufficient 

to show that [redacted] has authority to sublicense [sic] 

the space to the U.S entity. You include articles about the 

U.S. entity and the beneficiary. The most recent contract 

between a third party and the U.S. entity is November 

22, 2013. The evidence includes two 2013 Miscellaneous 

Income Form 1099s addressed to the beneficiary and the 

U.S. entity. The most recent invoice is dated December 18, 

2013. 

You may still submit evidence to satisfy this requirement. 

Evidence may include: 

•	� The most recent annual report, which describes the 

 state of the U.S. entity’s finances. 

•	� Securities and Exchange Commission Form 10-K. 

•	� Federal or state income tax returns. 

•	� Audited financial statements, including balance sheets 

 and statements of income and expenses describing the 

 U.S. entities business operations. 

•	� Major sales invoices identifying gross sale amounts 

 reported on the income and expenses statement or on 

 corporate income tax returns. 

•	� Shipper’s exports declarations for in-transit goods, 

 if applicable. 

•	� The U.S. entity’s U.S. Customs and Border Protection 

 forms, Entry Summary and Customs Bond that show 

 business activity. 

•	� Business bank statement that show business activity. 

•	� Vendor, supplier, or customer contracts. 

•	� Third party license agreements. 

•	� Loan and credit agreements. 

A review of this excerpt reveals that the petitioner advanced 

both probative and credible evidence in support of its 

requirement to demonstrate that the L-1A petitioner is 

conducting business in the United States. Absent derogatory 

information, the evidence submitted appears to establish 

that it is “more likely than not” – the preponderance of 

the evidence standard – that the petitioner is conducting 

business in the United States. 

Despite high RFE rates in 2013, USCIS approved more 

than 94 percent of H-1Bs filed, 83 percent in the L-1A 

classification, and 67 percent in the L-1B classification.90 

High RFE rates coupled with high approval rates indicate 

USCIS needs to better articulate evidentiary requirements. 

USCIS’s issuance of such unduly burdensome RFEs consumes 

both USCIS and employer resources as well as delays final 

action on otherwise approvable filings. RFEs such as those 

described above demonstrate that additional training and 

quality assurance is needed to ensure USCIS adjudicators are 

aware of and adhering to current USCIS guidance and policy. 

Entrepreneurs in Residence. In May 2013, USCIS 

completed its Entrepreneurs in Residence (EIR) initiative, 

which brought together USCIS and private-sector experts 

in an effort to provide immigrant entrepreneurs with 

pathways that are clear, consistent, and aligned with business 

realities.91 This initiative was widely publicized by the 

agency,92 and many were optimistic that if given sufficient 

resources, time and latitude, EIR could positively influence 

and modernize agency policies and practices. As part of the 

initiative, EIR representatives visited USCIS service centers 

to train adjudicators, and helped develop an “Entrepreneur 

Pathways” website dedicated to providing information 

about U.S. immigration avenues available to foreign 

entrepreneurs.93 From the EIR initiative, USCIS developed 

Startup 101 training that has been incorporated in the Basic 

Immigration Officer Training Course (Basic).94 USCIS has 

not quantified the initiative’s impact, such as changes in 

approval or RFE rates for start-up companies. On May 8, 

89 Id. See also 8 C.F.R. § 103.2(b)(8)(i). 

90 Supra note 85. 

91 USCIS Webpage, “USCIS Announces ‘Entrepreneurs in Residence’ Initiative” (Oct. 11, 2011); http://www.uscis.gov/news/public-releases-topic/businessimmigration/uscis-announces-entrepreneurs-residence-initiative (accessed Apr. 9, 2014).
�

92 See generally USCIS Webpage, “Entrepreneur in Residence;” http://search.uscis.gov/search/docs?utf8=%E2%9C%93&sc=0&query=%22entrepreneur+
�

in+residence%22+&m=&affiliate=uscis_gov&commit=Search (accessed Apr. 9, 2014). See also USCIS Webpage, “Entrepreneurs in Residence Information 

Summit” (Feb. 24, 2012); http://www.uscis.gov/outreach/notes-previous-engagements/entrepreneurs-residence-information-summit (accessed Jun. 12,
�

2014).
�

93 USCIS Webpage, “Entrepreneur Pathways;” http://www.uscis.gov/eir (accessed Apr. 9, 2014).
�

94 Information provided by USCIS (Apr. 28, 2014).
�

Annual Report to Congress – June 2014	� 23 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2013, USCIS announced the next phase of the initiative, now 

called Executives in Residence, would focus on the areas of 

performing arts, healthcare and information technology.95 

Ombudsman’s Past Recommendations. The Ombudsman 

issued recommendations to USCIS in the Ombudsman’s 

2010 Annual Report to address pervasive and serious 

issues in the high-skilled programs. The Ombudsman 

recommended that USCIS expand training of its adjudicators 

on the legal standard of proof, preponderance of the 

evidence, which is the standard for most petitions and 

applications for immigration benefits.96 USCIS concurred 

with this recommendation, and its Offices of Human 

Capital and Training and Chief Counsel developed training 

that provided specific examples for several immigrant and 

nonimmigrant classifications.97 USCIS piloted this training 

at Basic in February 2012, and finalized the material after 

revisions were made in the third quarter of 2012.98 

This 2012 training module is allocated four hours of 

classroom time during the six and a half week Basic 

curriculum, which covers a wide range of subjects including 

ethics, decision writing, interviewing techniques, and 

immigration law basics. While there may not be time for 

in-depth discussion of the legal standard at Basic, there 

is no mandatory refresher course for USCIS adjudicators 

pertaining to the preponderance of the evidence legal 

standard. 

The Ombudsman also previously recommended that USCIS 

conduct supervisory review of all RFEs at one or more of its 

service centers and in one or more product lines as a quality 

control pilot measure.99 The agency declined to adopt this 

recommendation, noting that it routinely conducts quality 

reviews.100 It deemed 100 percent supervisor RFE review 

to be too time-consuming and resource-intensive, despite 

the enormous costs for the agency in preparing RFEs and 

reviewing responses in tens of thousands of cases.101 

The Ombudsman supports USCIS’s efforts to clarify the L-1B 

standard.102 In 2010, the Ombudsman recommended that 

USCIS re-write L-1B regulations using the Administrative 

Procedure Act notice and comment process.103 Several 

years prior, USCIS issued multiple policy memoranda 

attempting to better define “specialized knowledge.”104 

These memoranda focused on Congressional intent, and a 

1970 Congressional Report noted, “the present immigration 

law and its administration have restricted the exchange and 

development of managerial personnel from other nations 

vital to American companies competing in modern-day 

world trade.”105 Despite these efforts, employers struggle 

to decipher USCIS policy and practice in the high-skilled 

visa programs. 

95 USCIS Webpage, “USCIS to Expand Entrepreneurs in Residence Initiative”; http://www.uscis.gov/news/uscis-expand-entrepreneurs-residence-initiative 

(accessed Apr. 9, 2014). See also USCIS Webpage, “Executives in Residence” (Apr. 4, 2014); http://www.uscis.gov/about-us/uscis-residence-programs/ 

executives-residence (accessed Apr. 23, 2014). 

96 Ombudsman Annual Report 2010 (Jun. 30, 2010), p. 47; http://www.dhs.gov/xlibrary/assets/cisomb_2010_annual_report_to_congress.pdf 

(accessed May 16, 2014).
�

97 See USCIS Webpage “USCIS and American Immigration Lawyers Association (AILA) Meeting” (May 29, 2012); http://www.uscis.gov/outreach/notesprevious-engagements/notes-previous-engagements-topic/policy-and-guidance/uscis-and-american-immigration-lawyers-association-aila-meeting 

(accessed Jun. 23, 2014).
�

98 USCIS response to Ombudsman Annual Report 2010 (Nov. 9, 2010), p. 6; http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20Annual%20Reports/cisomb-2010-annual-report-response.pdf (accessed Jun. 23, 2014).
�

99 Supra note 96, p. 48.
�

100 Supra note 98, p. 9.
�

101 Id. USCIS, at times, has conducted 100 percent supervisory review of RFEs upon the issuance of new policy.
�

102 See generally USCIS Teleconference Recap, “L-1B Specialized Knowledge” (Jun. 14, 2011).
�

103 Supra note 96, p. 36. See also Ombudsman Annual Report 2011 (Jun. 2011), p. 26; http://www.dhs.gov/xlibrary/assets/cisomb-annual-report-2011.
�

pdf (accessed May 16, 2014) and Ombudsman Annual Report 2013 (Jun. 2013), p. 30; http://www.dhs.gov/sites/default/files/publications/cisomb_2013_annual_report%20508%20final_1.pdf (accessed May 16, 2014). See Administrative Procedure Act, Pub. L. No. 79-404; 5 U.S.C. § 551 

(1946).
�

104 Immigration and Naturalization Service (INS) Policy Memorandum, “Interpretation of Specialized Knowledge,” (Mar. 9, 1994); INS Policy 

Memorandum, “Interpretation of Specialized Knowledge,” HQSCOPS 70/6.1 (Dec. 20, 2002); USCIS Policy Memorandum, “Interpretation of Specialized 

Knowledge for Chefs and Specialty Cooks,” (Sept. 9, 2004).
�

105 See generally H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.). 

24 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ongoing Concerns 

Below is an overview of challenges – many of them 

longstanding – in agency policy and adjudication of 

petitions for high-skilled workers. 

The Legal Standard for Adjudications: Preponderance 

of the Evidence. USCIS’s adjudicator training lacks a 

concentrated exploration of the preponderance of the 

evidence standard. Basic curriculum does not include 

hypothetical examples of employment cases that can be used 

to train adjudicators on how to apply the “more likely than 

not” preponderance test. Exploring how various factual 

scenarios could turn the case from an approval to a denial, 

or warrant the issuance of an RFE, would be highly 

instructive. The Ombudsman previously recommended this 

approach, but the training module covers this important 

subject matter only in the abstract. The Ombudsman urges 

USCIS to reinforce this training for all USCIS adjudicators 

by developing and requiring refresher courses on a 

regular basis. 

Gaps in L-1B Policy and Requests for Evidence. New L-1B 

guidance or regulations are needed to clarify the definition 

of “specialized knowledge.”106 The Immigration and 

Nationality Act (INA) does not precisely define “specialized 

knowledge,” and RFE rates for L-1Bs show that this legal 

standard is not well understood by employers or USCIS 

adjudicators. Stakeholders report receiving RFEs that request 

information already provided with the initial filing, business 

information not directly relevant to adjudication, or otherwise 

confidential or proprietary corporate information. 

The Ombudsman continues to monitor high RFE rates in 

the high-skilled worker visa programs. In 2004, CSC and 

VSC issued RFEs in 16 and 12 percent of L-1B petitions, 

respectively. In 2013, the CSC L-1B RFE rate was 51.5 

percent, and 41.4 percent at the VSC.107 In the first two 

quarters of FY 2014, the CSC RFE rate was at 50 percent, 

and at 56.7 percent at theVSC.108 

L-1B Denial Rates. USCIS L-1B denial rates have also 

increased in recent years.109 Five years ago, there was a 

20 percent denial rate overall for the L-1B category. Today, 

denial rates are at 40 and 32 percent for FY 2013 for the CSC 

andVSC, respectively.110 Data from FY 2014 reflects a similar 

denial rate at both service centers. See Figure 10: L-1B 

Denial Rates. 

It is difficult to identify the root cause of the high RFE and 

denial rates. The Ombudsman recognizes that USCIS cannot 

prevent the receipt of improperly prepared L-1B submissions. 

However, the sustained high rate of RFEs and denials in 

this visa classification indicates several possibilities: USCIS 

adjudicators are not receiving the right information from 

petitioners, adjudicators do not fully understand the legal 

standards for establishing L-1B specialized knowledge, or 

petitioners do not understand what USCIS adjudicators are 

looking for in an L-1B filing. 

FIGURE 10: L -1b DEnIAL RATES 

 

PERCEnTAGE 

100
 

80
 

60
 

40
 

20
 

0

California Service Center Vermont Service Center 

FY 2010 FY 2011 FY 2012 FY 2013 FY 2014*

Source: Information provided by USCIS (Apr. 28. 2014). 

*FY 2014 includes data through March 24, 2014. 

106 See Immigration and Nationality Act (INA) § 101(a)(15)(L).
�

107 Supra note 94.
�

108 Id.
�

109 Id. USCIS collects data by fiscal year, which means some cases are receipted in one fiscal year and issued a decision in the subsequent fiscal year. 

110 Id. 

Annual Report to Congress – June 2014 25 
The H-2 Temporary 

Worker Programs 

Responsible USCIS Office: 

Service Center Operations Directorate 

Stakeholders are increasingly turning to the Ombudsman 

for case assistance related to the H-2 programs. During this 

reporting period, the Ombudsman received a sharp increase 

in the number of requests for case assistance, most submitted 

by small- and medium-sized businesses petitioning for 

multiple workers, with some requesting 100 or more 

workers to fill their temporary labor needs. Stakeholders 

raise concerns with issuance of RFEs where similar petitions 

were approved in prior years for the same employer with 

identical temporary need in the same sector and for the same 

or similar workers. The Ombudsman also received requests 

for case assistance from Members of Congress whose 

constituents are negatively impacted by delays in 

H-2 adjudications. 

background 

Under the H-2 programs, U.S. employers may petition to 

hire foreign workers when they anticipate a temporary 

shortage of domestic labor.111 H-2 status is for workers who 

perform certain agricultural (H-2A) or nonagricultural jobs 

(H-2B) on a temporary basis due to seasonal, peak load, 

intermittent or one-time occurrence needs.112 Industries 

that rely on the timely processing of H-2 petitions include 

agriculture, landscaping, hospitality, horse racing, ski 

resorts, mobile entertainment (circuses), and crabbing, 

among others. 

There is a statutory limit on the number of H-2B nonagricultural workers that may be admitted each fiscal year. 

Visas are allocated in two allotments, with 33,000 available 

from October 1 to March 31, and the remaining 33,000 

available in the second half of the fiscal year, from April 1 to 

September 30.113 In FY 2013, the U.S. Department of State 

(DOS) reported that 57,600 H-2B workers were admitted 

to the United States.114 There is no corollary limit on the 

number of agricultural workers who may be admitted, 

and DOS reported that 74,192 H-2A visas were issued in 

2013.115 Generally, periods of admission may not exceed 

one year.116 

The H-2 programs are highly regulated, and in all cases 

require substantive review by three distinct agencies: the 

U.S. Department of Labor (DOL), USCIS, and DOS. The 

employer first files Employment and Training Administration 

(ETA) Form 9142, Application for Temporary Labor 

Certification with DOL demonstrating there are insufficient 

workers in the local labor pool who are willing, able, 

qualified, and readily available to fill the temporary need. 

This involves conducting a local recruitment campaign and 

coordination with the appropriate State Workforce Agency. 

Additionally, the employer must prove that the employment 

of foreign workers will not adversely affect the wages and 

working conditions of similarly employed U.S. workers. 

Employer petitioners and others involved in the H-2 process 

are prohibited from collecting a “job placement fee” or 

other compensation (either direct or indirect) at any time 

from workers as a pre-condition to their recruitment 

or employment.117 

Once DOL issues theTemporary Labor Certification, 

the employer submits to USCIS Form I-129, Petition for 

Nonimmigrant Worker. USCIS reviews the Temporary Labor 

Certification issued by DOL, and examines whether the need 

and the job are both temporary in nature (i.e., one time, 

seasonal, peak load or intermittent). USCIS prioritizes H-2A 

agricultural worker filings and typically completes these 

adjudications within a matter of days.118 Non-agricultural 

H-2B filings are not prioritized, but petitioners may request 

premium processing to obtain a decision within 15 calendar 

days.119 

The prospective foreign worker beneficiary then applies 

for a H-2 nonimmigrant visa at a DOS consulate abroad 

and is interviewed to determine admissibility, as well as if 

the applicant is aware of the work that will be performed, 

including the location and the applicable wage rate. DOS 

also probes whether or not the beneficiary paid a prohibited 

“job placement fee” at any time during the process.120 

Following visa issuance, the beneficiary presents himself or 

herself for admission to the United States at a U.S. Customs 

and Border Protection port of entry. 

26 Citizenship and Immigration Services Ombudsman 

111 See INA § 101(a)(15)(H)(ii)(a)-(b).
�

112 8 C.F.R. § 214.2(h)(6)(ii).
�

113 INA §§ 214(g)(1)(B) and 214(g)(10).
�

114 U.S. Department of State Webpage, “Table XVI(B) Nonimmigrant Visas Issued by Classification (Including CrewlistVisas and Border Crossing Cards) 

FiscalYears 2009-2013;” http://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2013AnnualReport/FY13AnnualReport-TableXVIB.pdf 

(accessed May 14, 2014). 

115 Id. 

116 8 C.F.R. § 214.2(h)(5)(iv)(A).
�

117 20 C.F.R. § 655 Subpart A and B.
�

118 Adjudicator’s Field Manual Ch. 31.4(c).
�

119 USCIS Webpage “How Do I Use the Premium Processing Service?” (Jun. 6, 2013); http://www.uscis.gov/forms/how-do-i-use-premium-processingservice (accessed May 16, 2014).
�

120 9 FAM 41.53 N2.2(c).
�
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Delays at any point in this process can have severe economic 

consequences for U.S. employers, including spoilage of 

harvestable fruits and vegetables, loss of valuable livestock, 

or disruptions of scheduled events or delivery of services. 

Employers may not begin the H-2B filing process more 

than 90 calendar days and no less than 75 calendar days 

before the employer’s date of need, and for H-2A filings 

an application cannot be filed 45 calendar days before the 

employer’s date of need.121 Processing delays with any entity 

involved in the life-cycle of these temporary worker filings, 

whether at DOL, USCIS, or DOS, heightens the need for the 

next agency in line to act swiftly on such filings. 

Ongoing Concerns 

Stakeholder concerns have focused on the increased 

issuance of RFEs by the VSC. One stakeholder representing 

multiple employers filing H-2B petitions at both theVSC 

and CSC provided the Ombudsman data indicating that the 

VSC is placing higher scrutiny on the “temporariness” or 

“seasonality” of occupations, resulting in a high issuance 

of RFEs. Between January 1 and March 30, 2014, one of 

the stakeholder’s employer members received 146 RFEs out 

of 300 petitions pending with the VSC for landscapers, a 

traditionally recognized seasonal and temporary job. H-2 

stakeholders are questioning why USCIS is issuing RFEs for 

seasonality for occupations that have long been recognized 

and approved by DOL and USCIS in prior years. FY 2014 

data shows that the VSC RFE issuance rate is 35 percent 

whereas the CSC rate over the same time frame is at 7 

percent. See Figure 11: H-2B (Temporary Nonagricultural 

Worker) Adjudication Data. 

Another common complaint is repetitive RFEs to verify 

business information year after year. For example, one ranch 

employer brought an H-2 case to the Ombudsman where 

USCIS issued RFEs for three consecutive years seeking the 

same business information for the petitioner. 

In May 2014, the Ombudsman convened an interagency 

meeting between DOL, DOS and DHS to review aspects 

of the H-2 process. The Ombudsman expects to discuss 

further H-2 processing issues at the office’s 2014 Annual 

Conference. 

The EB-5 Immigrant 

Investor Program 

Responsible USCIS Office: 

Immigrant Investor Program Office 

The Immigrant Investor program has historically presented 

USCIS with significant challenges due to many variables, 

including the complexity of projects, the financial 

arrangements with investors, and the attribution of job 

creation to the investment. During this reporting period, 

USCIS relocated adjudication to Washington, D.C. and issued 

new guidance addressing several longstanding stakeholder 

concerns. While stakeholders continued to raise concerns 

with adjudication delays, the Ombudsman received fewer 

requests for case assistance (61 requests) than in the 2013 

reporting period (441 requests). The new adjudication unit 

and the updated policy guidance usher in a new era for this 

increasingly popular investment and job-creating program. 

FIGURE 11: H -2b (TEMPORARy nOnAGRICULTURAL WORKER) ADjUDICATIOn DATA 

REqUESTS FISCAL yEAR SERvICE CEnTER RECEIPTS APPROvALS DEnIALS FOR EvIDEnCE 

2012 4,287 4,143 272 1,276 

California Service Center 1,381 1,355 74 334 

Vermont Service Center 2,906 2,788 198 942 

2013 4,720 4,490 168 1,427 

California Service Center 1,547 1,466 31 338 

Vermont Service Center 3,173 3,024 137 1,089 

2014* 3,653 3,319 61 918 

California Service Center 1,250 1,182 16 85 

Vermont Service Center 2,403 2,137 45 833 

Source: Information provided by USCIS (May 13, 2014). 

*FY 2014 includes data through March 31, 2014. 

121 20 C.F.R. §§ 655.15(b) and 655.130(b). 

Annual Report to Congress – June 2014 27 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

500 

400 

300 

200 

100 

0 

FY 2010* FY 2011 FY 2012 FY 2013

FY 2010* FY 2011 FY 2012 FY 2013 

 

 

 

 

 

 

 

 

 

background 

In 1990, Congress established the fifth employmentbased preference category (EB-5), which offers Legal 

Permanent Residence to immigrants who make significant 

investments in commercial enterprises that create U.S. 

jobs.122 Congress allocated 10,000 visas annually under this 

category for qualified foreign entrepreneurs, their spouses, 

and children.123 To be eligible for EB-5 status, a foreign 

entrepreneur must invest a minimum of $500,000 in an 

enterprise that will “directly create” 10 full-time positions 

for U.S. workers over a two-year period.124 

In 1992, shortly after launching the EB-5 preference 

category, Congress authorized the “Regional Center” Pilot 

program to encourage the concentration of EB-5 investor 

capital in projects likely to have greater regional and national 

impacts.125 Today, the vast majority of EB-5 investments flow 

through the Regional Center Pilot program. 

The EB-5 program has become an increasingly attractive 

pathway for individuals with investment capital to immigrate 

to the United States. Individual immigrant investor filings, 

submitted on Form I-526, Immigrant Petition by Alien 

Entrepreneur increased 504 percent between FY 2008 and 

2013.126 Project developers and financiers across the United 

States are now working with EB-5 Regional Centers, as well 

as with state and municipal governments, to use EB-5 funds 

as one part of financing for large-scale commercial and 

public development projects. Form I-924, Application For 

Regional Center Under the Immigrant Investor Pilot Program 

filings have also increased over the same period. See 

Figure 12: Form I-924, Application for Regional Center 

Under the Immigrant Investor Pilot Program. 

FIGURE 12: FORM I -924, APPLICATIOn FOR REGIOnAL CEnTER UnDER THE IMMIGRAnT InvESTOR 

PILOT PROGRAM 

Source: Information provided by USCIS (May 16, 2014). 

*Form I-924 came into use on November 23, 2010. 

122 Immigration Act of 1990 § 121(b)(5), Pub. L. No. 101–649; 8 U.S.C. § 1153(b)(5).
�

123 INA § 203(b)(5)(A).
�

124 INA § 203(b)(5)(B)(ii). Most foreign entrepreneurs invest in a “targeted employment area,” defined as a rural or urban area that has experienced high 

unemployment (of at least 150 percent of the national average rate). Under 8 C.F.R. section 204.6(f), the amount of capital necessary to make a qualifying 

investment in a targeted employment area within the United States is $500,000.
�

125 The Judiciary Appropriations Act of 1993 § 610, Pub. L. No. 102-395 (Oct. 6, 1992).
�

126 Information provided by USCIS (Jan. 24, 2014).
�

28 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notwithstanding the increase in EB-5 program filings, USCIS 

has, from time-to-time, placed adjudication holds on Forms 

I-526, I-829, Petition by Entrepreneur to Remove Conditions, 

and I-924, as it worked to address novel legal issues. 

On December 3, 2012, the USCIS Director announced that 

EB-5 adjudications would be transitioned from the CSC to 

a newly-established EB-5 adjudication unit in Washington, 

D.C. With this transition, USCIS organizationally realigned 

the EB-5 product line under the Field Operations Directorate, 

and designated this new unit as the Immigrant Investor 

Program Office (IPO). The IPO became operational 

on April 29, 2013. On May 30, 2013, USCIS issued a 

comprehensive EB-5 Policy Memorandum that addresses 

several longstanding stakeholder concerns, including when 

deference is afforded to prior adjudications.127 

On December 12, 2013, the DHS Office of the Inspector 

General (OIG) issued a report titled United States Citizenship 

and Immigration Services Employment Based Fifth Preference 

(EB-5) Regional Center Program.128 The OIG called on 

USCIS to: 

• Update and clarify the EB-5 federal regulations to ensure 

program integrity, including increased oversight of 

regional centers; 

• Establish formal memoranda of understandings with the 

Departments of Commerce and Labor and the Securities 

and Exchange Commission to provide expertise and 

assistance in the EB-5 program management and 

adjudications; and 

• Conduct a comprehensive assessment of how EB-5 funds 

have effectively stimulated job growth. 

In a response letter attached to the OIG report,129 USCIS 

concurred with these recommendations, with the exception 

of the OIG’s call on the agency to “quantify the impact of 

the EB-5 program on the U.S. economy.“ In rejecting this 

recommendation, USCIS stated that it is “not charged with 

conducting a broader assessment of the program’s impact.” 

Furthermore, USCIS “defended its policy of deferring to 

prior agency decisions involving the same investment project 

... [indicating] that an important element of consistency 

is that the agency must not upend settled and responsible 

business expectations by issuing contradictory decisions 

relating to the same investment projects,” and that doing so 

“undermines program integrity, and is fundamentally unfair 

to ... developers and investors [who] act in reliance on the 

approval.” The Ombudsman concurs – deference is essential 

to consistency in EB-5 and other USCIS adjudications. It 

should be noted that the two recommendations in the 

December 2013 OIG report with which USCIS concurred 

were previously made by the Ombudsman in March 2009. 

USCIS indicated in its response to the OIG report that 

it intends to soon initiate formal rulemaking to replace 

the current framework of outdated and ambiguous 

EB-5 regulations. 

127 See USCIS Policy Memorandum, “EB-5 Adjudications Policy (PM-602-0083)” (May 30, 2014); http://www.uscis.gov/sites/default/files/USCIS/Laws/ 

Memoranda/2013/May/EB-5%20Adjudications%20PM%20(Approved%20as%20final%205-30-13).pdf (accessed May 13, 2014).
�

128 See OIG Report, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program” (Dec. 12,
�

2013); http://www.oig.dhs.gov/assets/Mgmt/2014/OIG_14-19_Dec13.pdf (accessed Mar. 31, 2014).
�

129 Id., pp. 21-33. 

Annual Report to Congress – June 2014 29 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ongoing Concerns 

In January 2014, the Ombudsman held separate meetings 

with EB-5 stakeholders and USCIS IPO leadership. 

Stakeholders reported lengthy processing times in EB-5 

product lines, and raised concerns regarding lack of 

information sharing and engagement between the agency 

and stakeholders. Stakeholders stated that USCIS adjudicators 

appeared to be implementing new guidance from the May 

2013 EB-5 Policy Memorandum, including deference to 

prior adjudications involving the same regional center 

project. Ombudsman Odom communicated this feedback 

directly to responsible EB-5 program officials, including the 

new IPO Director. 

Shortly after these meetings, on January 26, 2014, the IPO 

held a national teleconference. USCIS updated stakeholders 

on the transition of EB-5 adjudications from the CSC to 

the Washington, D.C.-based IPO, and noted that, due to 

the transition, processing times will likely temporarily 

increase throughout the remainder of FY 2014, as the IPO 

on-boards and trains approximately 100 new adjudicators, 

economists, and other staff. Adjudication of Form I-829 

will remain in California for the remainder of 2014. 

Program leaders expressed determination that when the 

IPO is fully operational, USCIS will reduce processing 

times, and improve the predictability and consistency of 

EB-5 adjudications. Additionally, USCIS announced that it 

will redouble efforts to simultaneously enhance program 

integrity as it seeks to improve program efficiency. 

Conclusion 

The Ombudsman will continue to review RFEs in the 

high-skilled and H-2 programs and assess USCIS initiatives 

designed to improve the quality and consistency of 

adjudications. The Ombudsman anticipates continued USCIS 

and stakeholder engagements following the recent transition 

of the EB-5 unit from the CSC to Washington, D.C. 

30 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

Humanitarian 

USCIS humanitarian programs provide relief for immigrant victims of persecution, abuse, 

crime and trafficking. This Annual Report section discusses progress and challenges in USCIS 

processing of humanitarian immigration benefits, including lengthy processing times and 

unnecessary and unduly burdensome Requests for Evidence for certain victims. This section 

also includes a discussion of the seven-fold increase in credible fear claims – a product 

of a confluence of factors including regional violence and economic conditions in Mexico, 

El Salvador, Honduras, and Guatemala – resulting in lengthy affirmative asylum 

processing times. 

Annual Report to Congress – June 2014 31 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DHS Initiatives forVictims 

of Abuse,Trafficking, and 

Other Crimes 

DHS and USCIS initiatives support vital immigration 

protections for victims of trafficking and other violent 

crimes. During this reporting period, Ombudsman Odom 

became Chair of the Blue Campaign Steering Committee 

(Blue Campaign), DHS’s interagency anti-trafficking 

initiative, and Acting Co-Chair of the DHS Council on 

CombatingViolence Against Women. These leadership roles 

– working alongside USCIS, other DHS components, law 

enforcement, and community partners – helped advance 

the Department’s commitment to increasing awareness of 

human trafficking and strengthening humanitarian programs 

and relief. 

background 

Enacted in 1994, theViolence Against Women Act (VAWA) 

provides important immigration protections for victims of 

trafficking and other violent crimes.130 VAWA immigration 

benefits include: 1) a self-petition process for victims 

of domestic violence to independently request Lawful 

Permanent Residence on their own behalf and eliminate 

the need for victims to rely on abusers in order to obtain 

Permanent Residence; 2) T nonimmigrant status for victims 

of human trafficking; and 3) U nonimmigrant status for 

victims of certain specified crimes.131 DHS components, 

including USCIS, have implemented these provisions. 

130 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322; see also Victims of Trafficking andViolence Protection Act of 2000, Pub. 

L. No. 106-386, and Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193. 

131 Id. 

32 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On March 7, 2013, the President signed into law the 

Violence Against Women Reauthorization Act of 2013.132 

This legislation includes reauthorization of the William 

Wilberforce TraffickingVictims’ Protection Reauthorization 

Act of 2008,133 which reasserts the U.S. Government’s 

leadership role in the fight against modern-day slavery.134 

DHS Blue Campaign. The Blue Campaign, launched 

in 2010 and formally chartered in August 2013, is the 

unified voice for DHS’s nationwide efforts to combat 

human trafficking. Through interagency coordination, the 

Blue Campaign collaborates with law enforcement, first 

responders, prosecutors, government, non-governmental, 

faith-based, and private organizations to conduct training 

and outreach that expands awareness of human trafficking 

and helps to identify and protect victims and prosecute 

traffickers. Since its inception, the Ombudsman has 

contributed to the Blue Campaign by providing subject 

matter expertise and hosting stakeholder engagements. As 

Chair of the Blue Campaign, Ombudsman Odom works with 

DHS components across their various missions to prevent 

human trafficking, protect trafficking victims, investigate and 

assist in the prosecution of traffickers, and provide publicly 

available resources to the anti-trafficking community. 

Under Ombudsman Odom’s leadership, DHS completed 

with U.S. Departments of Justice (DOJ) and Health and 

Human Services (HHS) the development and release in 

January 2014 of the Federal Strategic Action Plan on Services 

for Victims of Human Trafficking in the United States, which 

coordinates the anti-human trafficking efforts of 19 federal 

agencies.135 This five-year plan outlines four goals, eight 

objectives and more than 250 action items across agencies 

for services. The plan provides a roadmap for aligning 

federal efforts to aid victims, increase understanding among 

federal and non-federal entities who work to support 

victims, expand victims’ access to services, and improve 

outcomes for survivors of human trafficking. The Blue 

Campaign has continued under Ombudsman Odom’s 

leadership to establish partnerships outside the federal 

government, such as reaching an agreement with Western 

Union at the end of 2013 that provides training to hundreds 

of Western Union employees on human trafficking and how 

to report it. This agreement also extends the reach of Blue 

Campaign public awareness materials to Western Union 

facilities nationwide. 

The Ombudsman provides case assistance to individuals 

seeking to resolve problems with applications and 

petitions for immigration relief, including immigrant 

victims of trafficking. The Ombudsman also 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. 

As a part of the Blue Campaign, USCIS participated 

in training sessions for law enforcement agencies on 

protections for immigrant victims. USCIS also collaborated 

with U.S. Immigration and Customs Enforcement’s (ICE) 

Homeland Security InvestigationsVictim Assistance program 

and Law Enforcement Parole Unit to train state and local 

police, and non-governmental and community-based 

organizations on indicators of human trafficking and 

132 Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4; see also Violence Against Women and Department of Justice Reauthorization 

Act of 2005, Pub. L. No. 109-162 (Jan. 5, 2006);Victims of Trafficking andViolence Protection Act of 2000, Pub. L. No. 106-386 (Oct. 28, 2000);
�

Violence Against Women Act of 2000;Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322 (Sept. 13, 1994).
�

133 William Wilberforce TraffickingVictims’ Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457 (Dec. 9, 2008).
�

134 Id. at § 235(d)(8).
�

135 The President’s Interagency Taskforce to Monitor and Combat Trafficking in Persons, “Coordination, Collaboration, Capacity, Federal Strategic Action 

Plan on Services forVictims of Human Trafficking in the United States, 2013-2017” (Jan. 2014); http://www.ovc.gov/pubs/FederalHumanTraffickingStrategicPlan.pdf (accessed Apr. 28, 2014).
�

Annual Report to Congress – June 2014 33 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

protections for immigrant victims.136 In addition, through 

itsVermont Service Center (VSC)VAWA Unit, USCIS hosted 

quarterly public outreach events. 

DHS Council on Combating Violence Against Women. 

In 2010, DHS created a working group to examine ways 

in which the Department could support the work of the 

Immigration Subcommittee of the White House Council 

on Women and Girls.137 This working group met on a 

quarterly basis from fall 2010 to spring 2012, to coordinate 

and develop projects to support protections for immigrant 

women and children. Through the coordinated efforts of 

the working group, DHS provided training to personnel 

on protections for immigrant victims and section 1367 of 

VAWA (VAWA Confidentiality). The group organized regular 

public outreach to state and local immigration professionals 

and legal and domestic violence service providers to receive 

feedback about DHS-related issues impacting victims, 

and it published the U Visa Law Enforcement Certification 

Resource Guide for Federal, State, Local, Tribal and Territorial 

Law Enforcement.138 The group also established working 

relationships with HHS, DOJ, the U.S. Department of State, 

and various state, local, and tribal government agencies. 

In an effort to formalize its work, DHS created the Council 

on Combating Violence Against Women (Council) in 

March 2013. The Council provides a forum to bring 

together experts from across DHS to identify and build 

consensus around the best approaches for combaing violence 

against women. The Council also identified initiatives 

that support combating violence against women already 

implemented across the Department for inclusion in a public 

resource guide. 

Ombudsman Odom, who has been Acting Co-Chair of 

the Council since September 2013, plays a key role in 

coordinating stakeholder engagements and identifying 

areas for improvement of DHS’s services and protections 

for victims. Additionally, the Council coordinates quarterly 

public webinars and teleconferences for DHS stakeholders 

including law enforcement, first responders, legal service 

providers, victim advocates, and others. On December 

19, 2013 and January 28, 2014, the Council and ICE 

co-hosted a webinar on ICE’s efforts to aid vulnerable 

populations. These efforts include the use of prosecutorial 

discretion on detention determinations through its Risk 

Classification Assessment Tool, stays of removal orders for 

U nonimmigrant status petitioners, and the agency’s 

sexual abuse and assault prevention intervention efforts to 

reduce sexual assault of detained immigrants, among 

other initiatives. 

USCIS Processing of 

Immigration Benefits for 

Victims of DomesticViolence, 

Trafficking, Sexual Assault, 

and OtherViolent Crimes 

Responsible USCIS Office: 

Service Center Operations Directorate 

USCIS continues to devote significant resources to outreach, 

training, and adjudication for immigration benefits for 

victims. The agency recognizes the need to meet processing 

time goals. As USCIS trains new adjudicators in the VAWA 

Unit, the Ombudsman will continue to monitor the quality 

of Requests for Evidence (RFEs) and overall processing of 

humanitarian programs. 

background 

In 2000, USCIS established the VAWA Unit at the VSC to 

promote consistency in adjudications.139 In May 2013, 

processing times were five months for T nonimmigrant 

status applications; 15 months for U nonimmigrant status 

petitions; and up to 19 months forVAWA self-petitions.140 

To address these lengthy processing times, USCIS added 30 

staff to its VAWA Unit. In March 2014, processing times 

had reduced to about eight months for U nonimmigrant 

status petitions (or pre-approvals when the U visa cap has 

been reached) and five months for VAWA self-petitions, but 

were slightly longer for T nonimmigrant status applications, 

at six months.141 At a December 6, 2013 stakeholder 

136 Information provided by USCIS (Apr. 28, 2014). 

137 Immigration Subcommittee of the White House Council on Women and Girls Webpage, “Council on Women and Girls;” http://www.whitehouse.gov/ 

administration/eop/cwg (accessed Apr. 9, 2014). 

138 DHS “UVisa Law Enforcement Certification Resource Guide for Federal, State, Local,Tribal andTerritorial Law Enforcement;” http://www.dhs.gov/ 

xlibrary/assets/dhs_u_visa_certification_guide.pdf (accessed May 9, 2014). This guide provides law enforcement agencies with information on the 

process to certify that a U nonimmigrant status petitioner has been the victim of a crime. It contains instructions on how to complete required forms and 

provides answers to frequently asked questions. 

139 “Report on the Operations of theViolence AgainstWomen Act Unit at the USCISVermont Service Center, Report to Congress” (Oct. 22, 2010), P. 3; 

http://www.uscis.gov/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/vawa-vermont-service-center.pdf (accessed Apr. 29, 

2014). 

140 See Ombudsman Annual Report 2013 (Jun. 2013), p. 11; http://www.dhs.gov/sites/default/files/publications/cisomb_2013_annual_report%20 

508%20final_1.pdf (accessed May 16, 2014). 

141 Id. 

34 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

nUMbER OF CASES 

50,000 

40,000 

30,000 

20,000 

10,000 

0 

Derivative Filings 

6,418 

10,742 

Principal Filings 

10,033 

16,768 

15,126 

24,768 

18,263 

25,432 

8,843 

12,002 

FY 2010 FY 2011 FY 2012 FY 2013 FY 2014* 

 

 

meeting, then-USCIS Director Alejandro Mayorkas stated 

his commitment to 180-day processing times at theVAWA 

Unit and not diverting resources to other immigration 

benefits. In a February 10, 2014 speech at a Blue Campaign 

stakeholder event, DHS Deputy Secretary Mayorkas 

committed to continuing to address processing times for 

these benefit categories.142 

Each year, 10,000 U visas are available for victims of certain 

specified crimes, including domestic violence, sexual 

assault, and human trafficking, who aid law enforcement 

in the investigation and/or prosecution of those crimes.143 

In FiscalYear (FY) 2014, for the fifth straight year, USCIS 

approved the statutory allotment of 10,000 petitions for 

U nonimmigrant status. See Figure 13: U Petition Filings. 

USCIS reached the limit earlier than in previous years, on 

December 11, 2013.144 USCIS will continue to process U 

nonimmigrant status petitions for the remainder of the 

fiscal year, placing approvable cases on a waiting list, and 

providing petitioners interim employment benefits and 

deferred status until FY 2015 numbers become available on 

October 1, 2014.145 

Over the past year USCIS has continued its extensive efforts 

to engage with the public, particularly emphasizing training 

for federal, state, and local law enforcement, to increase 

awareness of and access to the T and U visa programs. 

Between April 1, 2013 and March 31, 2014, USCIS 

conducted 24 outreach engagements regarding VAWA, 

U, and T nonimmigrant status petitions/applications.146 

Engagements ranged from in-person and webinar 

trainings to panel participation during conferences.147 

USCIS training included VAWA Confidentiality, which 

provides protections to prevent abusive partners from 

using government resources to further perpetuate abuse. 

In particular,VAWA Confidentiality provides protections 

against governmental disclosure of certain information 

regarding a victim; prohibits the government from relying 

on information provided by the abuser, perpetrator, or the 

abuser’s family members in a case against or for the benefit 

of the victim; and prohibits enforcement actions at protected 

locations (e.g., shelters, courthouses, rape crisis centers). 

Breaches ofVAWA Confidentiality can lead to disciplinary 

action and/or a personal fine against a federal employee who 

discloses protected information. With the support of the 

Ombudsman, DHS created and launched in 2012 an online 

training program on immigration remedies for battered 

immigrants andVAWA Confidentiality requirements, and in 

2013 released new policy guidance to ensure compliance 

with section 1367 of VAWA. 

FIGURE 13: U PETITIOn FILInGS 

Source: Information provided by USCIS (Apr. 28, 2014). 

*FY 2014 includes data through April 14, 2014. 

142 Ombudsman notes from Blue Campaign Stakeholder event (Feb. 10, 2014). 

143 Victims of Trafficking and Violence Protection Act of 2000 § 1513(c)(2)(A), P.L. 106-386. See also 8 C.F.R. § 214.14(d)(1).
� 

144 USCISWebpage, “USCIS Approves 10,000 UVisas for 5th Straight FiscalYear” (Dec. 11, 2013); http://www.uscis.gov/news/alerts/uscis-approves10000-u-visas-5th-straight-fiscal-year (accessed Apr. 21, 2014).
�

145 8 C.F.R. § 214.14(d)(2).
�

146 Supra note 136.
�

147 Id. 

Annual Report to Congress – June 2014 35 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ongoing Concerns 

Processing Times. This year USCIS made improvements 

in processing times for VAWA self-petitioners and T 

nonimmigrant status applicants. Both are now being 

adjudicated within six months. Considerable progress also 

has been made on processing times for U nonimmigrant 

status applications. Currently, they are being adjudicated 

within eight months. TheVAWA Unit will need to 

be adequately resourced to ensure that USCIS meets 

its processing time goal of six months. In addition, 

stakeholders have expressed confusion regarding how 

processing times are reported publicly for U nonimmigrant 

status petitions. On the USCIS website it states that petitions 

filed on or before February 11, 2013 are being processed. 

However, it is the Ombudsman’s understanding that the date 

on the website reflects the date of the last petition approved 

under the FY 2014 U visa cap and does not accurately reflect 

the processing time for conditional U status grants, which is 

currently approximately eight months. 

Requests for Evidence. Stakeholders continue to raise 

concerns about RFEs in the adjudication of U nonimmigrant 

status petitions,VAWA self-petitions, and conditional 

residence waivers due to battery or extreme cruelty. 

Specifically for these types of petitions, USCIS must consider 

“any credible evidence” submitted.148 This evidentiary 

requirement recognizes that abusers often deny victims 

access to important documents in a deliberate attempt to 

stop victims from seeking assistance. To ensure victims are 

afforded full protection under the law, USCIS adjudicators are 

directed to “give due consideration to the difficulties some 

self-petitioners may experience in acquiring documentation, 

particularly documentation that cannot be obtained without 

the abuser’s knowledge or consent.”149 

VAWA self-petitioners and their legal representatives report 

receiving RFEs requesting the type of documentation used 

to prove a good faith marriage in non-VAWA family-based 

cases (e.g., original marriage certificates, original joint 

bank account statements, etc.). Such RFEs seek evidence 

of a nature and type that is not required under the relevant 

regulations – thereby holding VAWA self-petitioners to 

a higher standard of proof than is actually required by 

applicable law and guidance. These RFEs, which can affect 

the quality of adjudication, add additional processing time 

to already delayed adjudications and may require additional 

attention from legal service providers, diminishing their 

capacity to assist victims. 

For U nonimmigrant status petitions, stakeholders report an 

increase in RFEs that appear burdensome and unnecessary 

and other adjudication issues. For example, the Ombudsman 

recently assisted an individual whose petition was denied 

because, according to USCIS, the petitioner did not show the 

certifying official was the appropriate certifier. The individual 

had provided USCIS with evidence in the initial petition 

regarding the authority of the certifying official, who 

previously had signed certifications in other U nonimmigrant 

status petition cases that had been approved. Upon review 

of the Ombudsman’s request, USCIS reopened and approved 

the case. In other RFEs, there were issues caused by the 

difference between the crime prosecuted and the qualifying 

crime listed on the U nonimmigrant status petition. For 

example, victims of trafficking may possess a signed law 

enforcement certification from the U.S. Department of Labor 

for involuntary servitude or peonage, which are qualifying 

U visa crimes,150 but the alleged trafficker is prosecuted 

for another crime. RFEs and denials have been based on a 

misunderstanding or misapplication of this distinction. 

It is time-consuming for petitioners and their representatives, 

often nonprofit agencies with limited resources, to respond 

to unnecessary RFEs. The Ombudsman has raised these 

concerns with USCIS, and understands that theVSC provides 

extensive training to its adjudicators on the requirements 

of the benefit types, as well as the dynamics of domestic 

violence and victimization. 

VAWA Adjustment of Status. During the past year, there 

were delays in the scheduling of adjustment of status 

interviews forVAWA self-petitioners, specifically between the 

time theVAWA Unit approved the self-petition and the time 

it took to transfer the case to the National Benefits Center 

(NBC) for processing and scheduling of an interview at a 

USCIS local office. TheVSC is currently transferring approved 

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

Immigrant with accompanying Forms I-485, Application 

to Register Permanent Residence or Adjust Status to the NBC 

within seven days of the finalVSC adjudication action.151 

The delay in scheduling for someVAWA self-petitioners has 

been six months or more. The NBC is working to eliminate 

delays in its process, with a processing goal of ten days.152 

148 Victims of Trafficking and Violence Protection Act of 2000 §§ 1504(a)(2)(D), 1505(b)(7)(B), and 1513(o)(4), P.L. 106-386. See also Violent Crime 

Control and Law Enforcement Act of 1994 § 40701(a)(3)(H), P.L. 103-322.
�

149 Immigration and Naturalization Service Policy Memorandum, “Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or 

Children of U.S. Citizens or Lawful Permanent Residents” (Apr. 16, 1996).
�

150 8 C.F.R. § 214.14(b)(1).
�

151 Supra note 136.
�

152 Id.
�

36 Citizenship and Immigration Services Ombudsman 
VAWA Employment Authorization for Nonimmigrants 

Victims. Section 106 of the Immigration and Nationality 

Act (INA), enacted on January 5, 2006 in theViolence 

Against Women and Department of Justice Reauthorization 

Act of 2005,153 provides employment authorization for 

battered spouses of certain nonimmigrants.154 USCIS has 

not implemented this provision. On December 12, 2012, 

USCIS published a draft Policy Memorandum titled Eligibility 

for Employment Authorization upon Approval of a Violence 

Against Women Act (VAWA) Self-Petition; and Eligibility for 

Employment Authorization for Battered Spouses of Certain 

Nonimmigrants, which provides guidance on employment 

authorization eligibility for battered spouses of certain A, E, 

G, and H nonimmigrants. However, this draft policy has not 

been finalized. The Ombudsman continues to receive case 

assistance requests from potentially eligible applicants who 

are victims of abuse. In one recent request submitted to 

the Ombudsman, an abused spouse of an H-1B visa holder 

attempted to seek work authorization. USCIS denied her 

application and informed her that the agency is not currently 

approving such applications. Eligible victims of domestic 

violence may not be able to escape abuse because of the 

delay in implementation of INA section 106. 

Increases in Credible and 

Reasonable Fear Requests 

and the Effect on Affirmative 

Asylum Processing 

Responsible USCIS Office: 

Refugee, Asylum, and International Operations Directorate 

Within the past three years, there has been a significant 

increase in the number of foreign nationals, many of them 

recent arrivals at the U.S. southern border, expressing fear of 

returning to their home countries and triggering credible 

and reasonable fear interview referrals to USCIS from U.S. 

Customs and Border Protection (CBP) and ICE. USCIS 

shifted resources, made new hires, and updated agency 

training to address the rising number of credible and 

reasonable fear claims. Despite these efforts, delays have 

developed for affirmative asylum processing. 

background 

Credible Fear. Expedited removal is the legal process 

under which a non-U.S. citizen is denied entry to and 

removed from the United States after seeking admission 

at a port of entry. Enacted in 1996, expedited removal 

applies to individuals at ports of entry (“arriving aliens”) 

who have been found inadmissible to the United States by 

a CBP officer for any of the following reasons: 1) fraud or 

misrepresentation; 2) falsely claiming U.S. citizenship; 3) 

not possessing a valid, unexpired immigrant visa or other 

suitable entry document; 4) not possessing a passport valid 

for a minimum of six months from the date of expiration 

of the initial period of stay; or 5) not possessing a valid 

nonimmigrant visa or border crossing card at the time of 

application for admission.155 The expedited removal process 

is also used to remove individuals unlawfully arriving in 

the United States by sea or those apprehended within 100 

miles of a U.S. land border, who have not been admitted 

or paroled, and are unable to establish continuous physical 

presence in the United States for the two-year period 

immediately prior to the date of apprehension.156 

A foreign national subject to expedited removal may be 

removed from the United States without a hearing before 

an immigration judge, unless that individual indicates an 

intention to apply for asylum or a fear of persecution, (i.e., 

a “credible fear”).157 If the individual expresses fear of 

persecution to either a CBP or ICE officer, the officer must 

make a referral for a credible fear interview by a USCIS 

Asylum Officer.158 

Once a referral has been made, a USCIS Asylum Officer will 

conduct a credible fear interview, while the individual is 

detained,159 to determine whether there is a “significant 

possibility ... that the alien could establish eligibility for 

asylum.”160 If the foreign national is found to have a credible 

153 Violence Against Women and Department of Justice Reauthorization Act of 2005 § 844, Pub. Law No. 109-162. See also Immigration and Nationality 

Act (INA) § 106.
�

154 USCIS Draft Policy Memorandum, “Eligibility for Employment Authorization upon approval of a Violence Against Women Act (VAWA) Self-Petition; and 

Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants” (Dec. 12, 2012); http://www.immigrantjustice.org/sites/immigrantjustice.org/files/Draft+Memo+-+Eligibility+for+Employment+Authorization+upon+Approval+of+a+VAWA+Self-Petition-December%202012.
�

pdf (accessed May 14, 2014).
�

155 Illegal Immigration Reform & Immigrant Responsibility Act of 1996, 8 U.S.C. § 1101, Pub. Law No. 104 – 208, 110 Stat. 3009 (1996)–546,
�

codified at 8 U.S.C. § 1101. INA § 235(b)(1)(A) and 8 C.F.R. § 235.3.
�

156 INA § 235(b)(1)(A)(iii).
�

157 INA § 235(b)(1)(A)(ii). CBP may choose to use normal removal proceedings under INA § 240 even when expedited removal procedures could 

otherwise be used. See Matter of E-R-M & L-R-M, 25 I&N Dec. 520 (BIA 2011).
�

158 8 C.F.R. §§ 208.30 (a) and 208.30 (c).
�

159 INA § 235(b)(1)(B)(iii)(IV).
�

160 INA § 235(b)(1)(B)(v); see also USCIS Policy Memorandum, “Release of Updated Asylum Division Officer Training Course (ADOTC) Lesson Plan,
�

Credible Fear of Persecution and Torture Determinations” (Feb. 28, 2014). Link not available at this time. 

Annual Report to Congress – June 2014 37 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

fear of return to the home country, the individual will be 

referred to the Executive Office for Immigration Review 

(EOIR) for a hearing before an immigration judge.161 USCIS 

referred 30,393 individuals to EOIR in FY 2013 and 16,467 

individuals in the first half of FY 2014.162 If the USCIS 

Asylum Officer issues a negative decision in a credible fear 

interview, the decision can be appealed to an immigration 

judge.163 If the individual does not appeal the credible fear 

determination, he or she will be removed from the United 

States using the expedited removal procedure.164 

Reasonable Fear. USCIS Asylum Officers are required to 

make reasonable fear determinations in two categories of 

cases referred by other DHS officers after a final order of 

removal has been issued or reinstated. In these cases, the 

individual is ordinarily removed without being placed in 

removal proceedings before an immigration judge.165 The 

first category involves individuals who illegally re-entered 

the United States after having been ordered removed or 

individuals who voluntarily departed the United States while 

under an order of exclusion, deportation, or removal.166 

The second category involves foreign nationals who do not 

hold Legal Permanent Residence, were convicted of one or 

more aggravated felonies and are subject to administrative 

removal from the United States.167 

Individuals in both categories are prohibited from 

challenging removability before an immigration judge or 

from seeking any form of relief from removal.168 However, 

a person may not be removed from the United States if 

the individual is “more likely than not” to be persecuted 

or tortured in the country to which the individual would 

be returned upon the execution of a removal order.169 

Accordingly, if a foreign national subject to administrative 

removal is able to establish a “reasonable possibility” 

of future persecution, the person will be granted an 

opportunity to appear before an immigration judge and 

request withholding of removal or deferral of removal.170 

In order to assess whether an individual facing 

administrative removal from the United States has a 

reasonable fear of persecution or torture, USCIS conducts 

a reasonable fear interview. Although USCIS states on its 

website that this interview will be conducted 10 days after 

ICE refers the case to the Asylum Office, due to the high 

volume of requests, USCIS currently strives to complete 

the reasonable fear process within 90 days of receiving a 

referral from ICE.171 As of April 6, 2014, the average time to 

complete an interview at a USCIS Asylum Office is 4.2 days 

for a credible fear interview and 45.5 days for a reasonable 

fear interview.172 When a USCIS Asylum Officer determines 

that a foreign national has a reasonable fear of persecution or 

torture, the officer refers the foreign national to Immigration 

Court for a withholding/deferral of removal hearing.173 

If the USCIS Asylum Officer determines that the foreign 

national does not have a reasonable fear of persecution or 

torture, the individual can request that an immigration 

judge review the negative reasonable fear finding.174 If 

the individual does not appeal the USCIS Asylum Officer’s 

negative reasonable fear finding, ICE will remove him or her 

from the United States.175 

Increase in Credible and Reasonable Fear Claims. 

Between 2000 and 2009, USCIS received approximately 

5,000 credible fear interview requests each year.176 

In 2009, the number of credible fear interview requests 

increased to 8,000.177 In 2012, the number rose to 13,000, 

and in 2013, it tripled to 36,000.178 Similarly, requests 

for reasonable fear interviews have also increased.179 For 

many years USCIS received only a few hundred reasonable 

161 INA § 235(b)(1)(B)(ii).
�

162 Supra note 136.
�

163 INA § 235(b)(1)(B)(iii)(III).
�

164 INA § 235(b)(1)(B)(iii)(I).
�

165 8 C.F.R. § 208.31.
�

166 INA § 241(a)(5).
�

167 INA § 237(a)(2)(A)(iii).
�

168 INA §§ 238(b) and (c), and 242(a)(2)(C) and 8 C.F.R. § 238.
�

169 8 C.F.R. § 208.16(c)(3).
�

170 8 C.F.R. §§ 208.31(e) and 208.16.
�

171 USCIS Webpage, “Questions & Answers: Reasonable Fear Screenings” (Jun. 18, 2013); http://www.uscis.gov/humanitarian/refugees-asylum/asylum/
�

questions-answers-reasonable-fear-screenings (accessed Apr. 25, 2014). See supra note 135.
�

172 Information provided by USCIS (Apr. 28, 2014).
�

173 8 C.F.R. §§ 208.31(e) and 208.16; see USCIS Webpage, “Questions & Answers: Reasonable Fear Screenings” (Jun. 18, 2013); http://www.uscis.gov/
�

humanitarian/refugees-asylum/asylum/questions-answers-reasonable-fear-screenings (accessed Apr. 25, 2014).
�

174 8 C.F.R. § 208.31(g).
�

175 USCIS Webpage, “Questions & Answers: Reasonable Fear Screenings” (Jun. 18, 2013); http://www.uscis.gov/humanitarian/refugees-asylum/asylum/
�

questions-answers-reasonable-fear-screenings (accessed Apr. 25, 2014).
�

176 Information provided by USCIS (Oct. 24, 2013).
�

177 Id. 

38 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

fear interview requests each year. In 2013, USCIS received 

7,000 reasonable fear interview requests from ICE.180 A 

total of 4,156 reasonable fear cases were referred to USCIS 

in the first five months of FY 2014.181 See Figure 14: Top 

Countries of Origin for Credible and Reasonable Fear 

Interview Requests. 

USCIS has prioritized credible and reasonable fear interviews 

over affirmative asylum hearings because applicants for 

the former are detained. In addition, USCIS prioritizes 

credible fear interviews over reasonable fear interviews. 

Due to limited resources and the recent rise in the number 

of requests for credible fear interviews, USCIS is now 

conducting reasonable fear interviews within 90 days and 

on average 45 days.182 Nonetheless, stakeholders have 

reported that some individuals waited up to three months to 

be interviewed by a USCIS Asylum Officer and then waited 

an additional three months, all while detained, to receive a 

reasonable fear determination.183 

USCIS endeavors to conduct credible fear interviews within 

14 days of receiving a referral from CBP or ICE and reduced 

the credible fear interview timeframe in 2013.184 At the 

beginning of FY 2013, 85 percent of individuals requesting 

FIGURE 14: TOP COUnTRIES OF ORIGIn FOR CREDIbLE AnD REASOnAbLE FEAR InTERvIEW REqUESTS 

TOP COUnTRIES OF ORIGIn FOR REASOnAbLE FEAR REqUESTS 

MEXICO EL SALVADOR HONDURAS GUATEMALA 

0 

500 

1,000 

1,500 

2,000 

2,500 

3,000 

FY 2012 FY 2013 

nUMbER OF REqUESTS

 

TOP COUnTRIES OF ORIGIn FOR CREDIbLE FEAR REqUESTS 

0 

2,000 

4,000 

6,000 

8,000 

10,000 

12,000 

FY 2012 FY 2013 

nUMbER OF REqUESTS 

EL SALVADOR HONDURAS GUATEMALA MEXICO ECUADOR CHINA INDIA 

Source: Information provided by USCIS (Apr. 28, 2014). 

178 Id. 

179 Id. 

180 Id. 

181 See USCIS Asylum Division Quarterly Stakeholder Meeting Notes (Jul. 31, 2013), p.5; see also 8 C.F.R. § 208.7(a).
�

182 Supra note 136.
�

183 Supra note 176.
�

Annual Report to Congress – June 2014 39 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

nUMbER OF CASES 

Cases Pending at the Start of the Fiscal Year Received Cases Pending at the End of the Fiscal Year 

50,000 

45,000 

40,000 

35,000 

30,000 

25,000 

20,000 

15,000 

10,000 

5,000 

0 

FY 2011 FY 2012 FY 2013 FY 2014*
	

credible fear interviews were processed within 14 days of 

referral from ICE or CBP. A year later, by October 2013, 

USCIS was processing credible fear interviews within 

eight days.185 To further streamline the credible fear 

interviews, USCIS began conducting telephonic credible 

fear interviews.186 In FY 2013, 60 percent of credible fear 

interviews were conducted telephonically, and more than 68 

percent of cases were conducted telephonically through the 

second quarter of FY 2014.187 

USCIS revised its credible fear training, which was released 

to USCIS Asylum Officers in February 2014. The revised 

training emphasizes the requirement that the applicant 

demonstrate a “significant possibility”188 of eligibility for 

asylum, withholding or removal, or deferral of removal 

rather than a “mere possibility.”189 

Ongoing Concerns 

The Ombudsman continues to monitor steps taken by USCIS 

to streamline its credible and reasonable fear interview 

process and reduce backlogs while maintaining the 

integrity and protections afforded by U.S. asylum laws. 

The Ombudsman supports USCIS in its effort to increase 

staffing and eliminate backlogs. 

Delays in Credible and Reasonable Fear Interviews. 

Many stakeholders have expressed concern regarding 

the delays in credible and reasonable fear interviews and 

communications between USCIS, CBP and ICE. USCIS’s goal 

is to conduct reasonable fear interviews within 90 days of 

referral from ICE or CBP, and credible fear interviews within 

14 days.190 An individual may be detained by ICE for a 

significant period of time before and after making a request 

for a reasonable fear interview. Even with the increase in 

applications and lag in corresponding agency staffing levels, 

USCIS has stated its commitment to meet its policy and 

regulatory requirements.191 The USCIS Refugee Asylum and 

International Operations Directorate is working to address 

these challenges through better coordination with ICE, for 

example, by accommodating credible fear interviews of 

detainees at certain USCIS Asylum Offices, rather than at 

DHS detention facilities. 

Use of Telephonic Interviews. Since instituting telephonic 

interview processing in January 2013, remote USCIS 

Asylum Officers conducted more than 13,000 credible 

fear interviews.192 Stakeholders stated concerns that the 

increased use of telephonic interviews limits the USCIS 

Asylum Officer’s ability to evaluate credibility and appreciate 

FIGURE 15: ASyLUM APPLICATIOn FILInGS 

Source: Information provided by USCIS (Apr. 28, 2014). 

*FY 2014 includes data through March 31, 2014.
	

184 See supra note 181; see also 8 C.F.R. § 208.7(a).
�

185 Supra note 176.
�

186 USCIS Asylum Division Quarterly Stakeholder Meeting (Mar. 19, 2013).
�

187 Supra note 136.
�

188 INA § 235(b)(1)(B)(v).
�

189 USCIS Policy Memorandum, “Release of Updated Asylum Division Officer Training Course (ADOTC) Lesson Plan, Credible Fear of Persecution and 

Torture Determinations” (Feb. 28, 2014). Link not available at this time.
�

190 Information provided by USCIS (May 8, 2014).
�

191 Supra note 176.
�

192 Supra note 136.
�

40 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

nuances in the foreign national’s statements.193 Specifically, 

they are concerned that, where an individual is referred for 

proceedings before an immigration judge, the Court will 

give undue weight to the summary of facts prepared by the 

USCIS Asylum Officer during the credible fear interview 

process, and fail to pay proper attention to the full statement 

made by the foreign national in applications for relief from 

removal.194 

Impact on Affirmative Asylum. While USCIS continues to 

see an increase in requests for credible and reasonable fear 

interviews, the agency also faces an increase in receipts of 

affirmative asylum applications.195 USCIS has prioritized 

requests by detainees and allocated its resources to those 

areas. Remaining resources are used to address affirmative 

asylum and Nicaraguan Adjustment and Central American 

Relief Act applications.196 However, the result is that 

affirmative asylum application backlogs have arisen. As of 

April 23, 2014, USCIS faced a backlog of 45,193 cases.197 

The largest affirmative asylum application backlog is at 

the Los Angeles Asylum Office.198 See Figure 15: Asylum 

Application Filings. 

As the delay in affirmative asylum application adjudication 

grows, many asylum applicants are faced with difficulties 

in the United States such as employment and resettlement, 

while their families abroad continues to face adversity. 

Applicants for asylum are not permitted to apply to bring 

their family to the United States unless and until their own 

asylum applications are approved and they are granted asylee 

status.199 In the past year, the Ombudsman experienced 

a rise in the number of case assistance requests regarding 

delayed asylum application interviews and adjudication. 

Case Example 

An asylum applicant moved while he was waiting for 

his interview to be scheduled. His change of address 

request to USCIS and the interview notice crossed 

paths in the mail, causing him to miss his interview. 

The change of address was confirmed and his file 

was transferred to the new location. Having waited 

more than 180 days, he believed he was eligible 

for employment authorization, but was informed 

after applying that since he missed his interview, the 

asylum clock had stopped and he was considered 

ineligible. Rather than placing his file in queue for 

a rescheduled affirmative asylum interview, his file 

was placed in the new asylum office’s backlog of new 

cases. For over a year he was unable to obtain work 

authorization. In response to the Ombudsman’s 

inquiry, the USCIS Headquarters Refugee, Asylum, 

and International Operations Directorate agreed to 

expeditiously reschedule the interview. 

New Funding and Hires. To meet the growing number 

of requests for credible and reasonable fear interviews, as 

well as affirmative asylum applications, USCIS requested 

additional funding, which Congress approved in August of 

2013.200 The USCIS Asylum Division received permission 

to increase its number of officers by 100, from 273 to 373 

positions.201 As of April 16, 2014, USCIS had 322 Asylum 

Officers on board, 15 additional candidates scheduled to 

enter on duty into USCIS Asylum Officer positions between 

April and July, and approximately 25 candidates selected 

to fill vacant Asylum Officer positions who are undergoing 

security screening prior to entering on duty.202 In addition, 

USCIS has detailed 35 officers from other branches of USCIS 

to various Asylum Offices to conduct interviews.203 The 

Ombudsman notes that additional adjudicative resources 

may be necessary to address the affirmative asylum backlog. 

193 Id.
�

194 Id.
�

195 Supra note 186.
�

196 Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160,Tit. II, Div.A (Nov. 19, 1997), as amended by Pub. L.
�

No. 105-139, 111 Stat. 2644 (Dec. 2, 1997).
�

197 USCIS Asylum Division Quarterly Stakeholder Meeting (Apr. 23, 2014).
�

198 Supra note 136.
�

199 8 C.F.R. § 208.21(d).
�

200 Supra note 197.
�

201 Supra note 136.
�

202 Id.
�

203 Supra note 197. 

Annual Report to Congress – June 2014 41 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Humanitarian Reinstatement 

and Immigration and 

Nationality Act Section 204(l) 

Reinstatement 

Responsible USCIS Office: 

Service Center Operations Directorate 

Humanitarian reinstatement is a regulatory process under 

8 C.F.R. section 205.1(a)(3)(i)(C) in which familybased beneficiaries whose approved petitions are revoked 

automatically upon the death of the petitioner may continue 

to seek immigration benefits if certain factors are established. 

There is also a streamlined reinstatement process, covered 

under INA section 204(l), for certain surviving relatives 

who are in the United States and had an approved petition 

at the time of the qualifying relative’s death.204 The 204(l) 

reinstatement applicant need not establish the multiple 

humanitarian factors required in traditional humanitarian 

reinstatement. Gaps in guidance, lack of uniform 

procedures, and imprecise evidentiary requirements from 

USCIS in the handling of humanitarian and INA section 

204(l) reinstatement cases are inconsistent with the remedial 

and humanitarian nature of this relief. 

background 

Humanitarian Reinstatement under the Regulations. 

USCIS regulations provide that certain family-based petitions 

are revoked automatically upon the death of a petitioner, 

and surviving beneficiaries may request that the petition 

be reinstated on humanitarian grounds.205 This process, 

referred to as “humanitarian reinstatement,” is a form of 

discretionary relief available to the principal beneficiary of 

a Form I-130, Petition for Alien Relative that was approved 

prior to the death of the petitioner.206 

The requirements for discretionary requests for 

humanitarian reinstatement are outlined in regulations 

and administrative guidance.207 Reinstatement is the only 

possible relief for surviving beneficiaries who cannot meet 

the requirements of INA section 204(l) or who are not 

widow/widowers of U.S. citizens. An affidavit of support 

from a substitute sponsor must accompany the request.208 

The USCIS Adjudicator’s Field Manual (AFM) lists the 

criteria considered in assessing whether discretion should 

be exercised favorably in response to a humanitarian 

reinstatement request: 1) the impact of revocations on the 

family unit in the United States, especially on U.S. citizen or 

Legal Permanent Resident relatives or other relatives living 

lawfully in the United States; 2) the beneficiary’s advanced 

age or poor health; 3) the beneficiary having resided in 

the United States lawfully for a lengthy period; 4) the 

beneficiary’s ties to his or her home country; and 

5) significant delay in processing the case after approval of 

the petition and after a visa number has become available, if 

the delay is reasonably attributable to the government rather 

than the individual.209 The AFM also states, “[A]lthough 

family ties in the United States are a major consideration, 

there is no strict requirement for the alien beneficiary to 

show extreme hardship to the alien, or to relatives already 

living lawfully in the United States, in order for the approval 

to be reinstated.”210 The AFM further provides that decisions 

on humanitarian reinstatement should be communicated 

in writing to the beneficiary, that there is no appeal, and 

that humanitarian reinstatement “may be appropriate when 

revocation is not consistent with the furtherance of justice, 

especially in light of the goal of family unity that is the 

underlying premise of our nation’s immigration system.”211 

Before INA section 204(l), only widows and widowers of 

U.S. citizens could seek Legal Permanent Resident status after 

the death of a qualifying relative. Other eligible survivors 

were required to seek humanitarian reinstatement under 

8 C.F.R. section 205.1(a)(3)(iii)(C)(2). 

Reinstatement under INA Section 204(l). INA section 

204(l) protects: 

• Beneficiaries of a pending or approved immediate relative 

visa petition; 

• Beneficiaries of a pending or approved family-based visa 

petition, including both the principal beneficiary and any 

derivative beneficiaries; 

• Any derivative beneficiary of a pending or approved 

employment-based visa petition; 

• Beneficiaries of a pending or approved refugee/asylee 

relative petition; 

204 See Ombudsman Recommendation, “Improving the Adjudication of Applications and Petitions Under Section 204(l) of the Immigration and 

Nationality Act” (Nov. 26, 2012); http://www.dhs.gov/publication/improving-adjudication-under-ina-section-204l (accessed Apr. 23, 2014).
�

205 8 C.F.R. § 205.1(a)(3)(i)(C).
�

206 See USCIS Webpage, “Humanitarian Reinstatement” (Jun. 7, 2013); http://www.uscis.gov/green-card/green-card-through-family/humanitarianreinstatement (accessed Apr. 1, 2014).
�

207 8 C.F.R. § 205.1(a)(3)(i)(C) and USCIS Adjudicator’s Field Manual (AFM) Ch. 21.2(h)(1)(C).
�

208 INA §§ 213(f)(5)(B), 212(a)(4)(C) and 8 C.F.R. § 213a.2(a)(2)(ii).
�

209 AFM Ch. 21.2(h)(1) (C) (2013) and USCIS Webpage, “Humanitarian Reinstatement” (Jun. 7, 2013); http://www.uscis.gov/green-card/green-cardthrough-family/humanitarian-reinstatement (accessed May 13, 2014). 

210 Id. 

211 Id. 

42 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

• Individuals admitted as derivative “T” or “U” 

nonimmigrants; and 

• Derivative asylees. 

In December 2012, USCIS issued guidance for reinstatement 

for those persons with approved petitions at the time of 

the qualifying relative’s death seeking relief under INA 

section 204(l).212 Survivors seeking coverage under INA 

section 204(l) are subject to a discretionary evaluation, but 

a showing of the factors needed for traditional humanitarian 

reinstatement is not required. Instead, the request will 

be approved if it is consistent with “the furtherance of 

justice.”213 

Data for Humanitarian Reinstatement and INA Section 

204(l) Reinstatement. As reported in the Ombudsman’s 

2013 Annual Report, USCIS maintained no national data 

on humanitarian and INA section 204(l) reinstatement 

until November 2012, when the agency added an action 

code to its data system to account for reinstatement 

requests. The code, however, does not distinguish between a 

reinstatement request made under INA section 204(l) versus 

a humanitarian reinstatement request made under 8 C.F.R. 

section 205.1(a)(3)(i)(C). 

After starting to collect data in November 2012, USCIS 

reports that in FY 2013 it received 3,257 requests for 

humanitarian and INA section 204(l) reinstatement, denied 

632 requests and granted 262. In FY 2014, USCIS received 

1,704 requests for humanitarian and INA section 204(l) 

reinstatement, denied 652 requests and approved 372. To 

date, there are 3,043 humanitarian and INA section 204(l) 

reinstatement requests pending with USCIS.214 See Figure 

16: Humanitarian and INA Section 204(l) Reinstatement 

Requests. 

FIGURE 16: HUMAnITARIAn AnD InA SECTIOn 204(I) REInSTATEMEnT REqUESTS 

FISCAL yEAR REqUESTS RECEIvED REqUESTS GRAnTED REqUESTS DEnIED 

2013 Service Center 3,257 262 632 

California Service Center 2796 132 562 

National Benefits Center 2 1 1 

Vermont Service Center 459 129 69 

2014 Service Center 1,704 372 652 

California Service Center 1,314 72 502 

National Benefits Center 92 20 0 

Vermont Service Center 291 280 150 

Texas Service Center 7 0 0 

Source: Information provided by USCIS (May 29, 2014). 

*As of April 28, 2014, there are 3,043 humanitarian reinstatement requests pending with USCIS.
	

212 USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the 

Immigration and Nationality Act” (Dec. 16, 2010); http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-ofQualifying-Relative.pdf (accessed Apr. 29, 2014).
�

213 Id., p. 6.
�

214 Information provided by USCIS (May 29, 2014).
�

215 Supra note 140, p. 18.
�

Annual Report to Congress – June 2014 43 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ongoing Concerns 

As noted in the Ombudsman’s 2013 Annual Report, 

stakeholders continue to report, among other issues, 

variances and delays in the handling of humanitarian and 

INA section 204(l) reinstatement requests.215 These and 

other concerns continue in 2014, as evidenced by the 

requests for case assistance received by the Ombudsman 

from humanitarian and INA section 204(l) reinstatement 

requestors. 

Lack of Standardized Procedures. USCIS lacks a 

standardized process for receiving and processing 

humanitarian and INA section 204(l) reinstatement 

requests. Procedures for submitting such requests vary by 

USCIS office. Also, USCIS does not post processing times 

for reinstatement requests, nor does it issue receipt notices 

acknowledging the request. 

Generally, for immigration benefits, there is a required 

form and accompanying instructions that specify where 

the application is to be filed.216 This requirement helps 

USCIS issue receipt numbers and properly track cases. 

There is no standard USCIS form for making a humanitarian 

or INA section 204(l) reinstatement request. The USCIS 

website instructs individuals to send written requests 

for humanitarian reinstatement to the USCIS office that 

originally approved the petition.217 With only an informal 

letter process, stakeholders have experienced slow and 

irregular handling of reinstatement requests by USCIS. The 

imprecise process of filing individualized letters in each case 

without a specific form poses challenges to uniformity in 

processing for a large agency responsible for hundreds of 

thousands of varied requests. 

Stakeholders note that although basic humanitarian and INA 

section 204(l) reinstatement eligibility and instructions can 

be found on the USCIS website,218 the information is unclear 

and difficult to find, particularly for pro se individuals. 

People report not knowing where to file the reinstatement 

request. Although the instructions on the USCIS website 

indicate that the humanitarian reinstatement request 

should be submitted to the office where the petition was 

approved,219 in many cases the petition was filed years 

prior to the humanitarian reinstatement request by 

a petitioner who can no longer provide this information to 

the beneficiary. USCIS jurisdiction for the request also may 

have changed after the original filing for reasons unknown 

to the beneficiary, such as reallocation of resources or 

agency restructuring.220 

216 USCIS Webpage, “Forms”; http://www.uscis.gov/forms (accessed Apr. 15, 2014). 

217 See USCIS Webpage, “Humanitarian Reinstatement” (Jun. 7, 2013); http://www.uscis.gov/green-card/green-card-through-family/humanitarianreinstatement (accessed May 9, 2014); see also USCIS Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative 

under New Section 204(l) of the Immigration and Nationality Act” (Dec. 16, 2010), p. 6; http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf (accessed Apr. 29, 2014); see also USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for 

Surviving Relatives” (Jun. 7, 2013); http://www.uscis.gov/green-card/green-card-through-family/basic-eligibility-section-204l-relief-surviving-relatives 

(accessed May 9, 2014); see also AFM Ch. 21.2(h)(1)(C). 

218 USCIS Webpage, “Humanitarian Reinstatement” (Jun. 7, 2013); http://www.uscis.gov/green-card/green-card-through-family/humanitarian-reinstatement (accessed Apr. 15, 2014). 

219 Id. 

220 Information provided by USCIS (Apr. 9, 2014). For example, the Nebraska Service Center forwards reinstatement requests to theVermont Service 

Center for decisions. 

44 Citizenship and Immigration Services Ombudsman
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Processing Inconsistencies and Delays. Stakeholders 

continue to report that USCIS has difficulty determining 

which USCIS office has jurisdiction over the request, that 

USCIS uses uninformative and often incorrect template 

denials, and that it fails to provide meaningful information 

to pro se applicants, causing lengthy processing delays and 

confusion to the public. 

Case Example 

In July 1993, USCIS approved Form I-130 on 

behalf of a child. In 2004, the petitioning father 

died. At that time, the beneficiary was still waiting 

for his immigrant visa appointment overseas. The 

beneficiary who was unrepresented did not apply 

for reinstatement, but did notify DOS that the 

petitioner had died. DOS notified USCIS, and in 

March 2011, the USCIS California Service Center 

(CSC) issued a denial of the reinstatement, stating 

that the evidence on record did not establish a 

favorable exercise of discretion. This was a surprise 

to the beneficiary, since he had not yet submitted 

a humanitarian reinstatement request. He retained 

counsel who wrote to USCIS and clarified that no 

request for reinstatement had been submitted, but 

that the beneficiary would like to present one. USCIS 

issued a second denial in May 2011, in which the CSC 

referenced the first denial and incorrectly concluded 

that the petitioner died prior to the approval of the 

family-based petition, thus no reinstatement could 

be considered. USCIS itself had confirmed in its first 

denial that the petition was approved in July 1993. 

The petitioner died almost ten years later in 2004. 

The beneficiary and counsel submitted a request for 

reinstatement with documentation, and pointed out 

the factual errors made by USCIS. The CSC reopened 

and adjudicated the case. 

Stakeholders report that once the initial request for 

humanitarian reinstatement is denied, the CSC will not 

permit subsequent requests without the filing of Form 

I-290B, Notice of Appeal or Motion with a fee of $630, 

submitted within 30 days from USCIS’s final decision.221 

This practice is problematic since it can take months to 

compile and submit additional evidence of humanitarian 

factors, or retain legal representation. Since humanitarian 

reinstatement has no appeal under the USCIS guidance in 

the AFM, resubmission of a request with additional evidence 

is the only possible avenue for further consideration of a 

case.222 The Ombudsman raised this concern with USCIS 

Service Center Operations Directorate, which confirmed, 

“[t]here is no regulation or USCIS policy to limit the 

number of [reinstatement] requests that can be made 

following the death of the petitioner on an approved 

I-130.”223 However, it remains unclear whether this CSC 

local practice is standard agency policy. 

221 Information provided through requests for case assistance.
�

222 AFM Ch. 21.1(h)(1)(C).
�

223 Information provided by USCIS (Feb. 27, 2014).
�

Annual Report to Congress – June 2014 45 
Confusion between Humanitarian Reinstatement and 

INA section 204(l) Reinstatement. As described above, 

humanitarian and INA section 204(l) reinstatement have 

different legal authorities and eligibility standards. They 

also apply to different groups of people in the immigration 

process. However, perhaps because both requests concern 

survivors, and both lack a form, fee and normal receipting 

process at USCIS, stakeholders report that USCIS sometimes 

treats such cases interchangeably and requires persons 

requesting INA section 204(l) reinstatement to supply 

humanitarian and hardship documentation that should only 

be required for humanitarian reinstatement under 8 C.F.R. 

section 205.1(a)(3)(i)(C). Many survivors often do not 

understand the distinct requirements for these requests 

for relief. 

Conclusion 

During this reporting period, USCIS, in partnership with 

other DHS components, continued to work to increase 

public awareness of trafficking and domestic violence, and 

the immigration relief available to victims. Unnecessary 

RFEs need USCIS’s attention because they contribute to 

these delays and impact the quality of adjudications. The 

dramatic increase in credible and reasonable fear interview 

referrals has required USCIS and other DHS components to 

shift resources. Nearly a quarter of affirmative asylum cases 

are now pending over one year. Additionally, improvements 

in the handling of requests for reinstatement for surviving 

family members are long overdue and merit agency 

attention. 

46 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

Interagency, Process Integrity, 

and Customer Service 

USCIS provides customer service through a wide variety of programs and initiatives. 

Between April 1, 2013, and March 31, 2014, USCIS hosted or participated in more than 

3,200 stakeholder events, including eight national multilingual engagements and 557 local 

outreach events in languages other than English.224 USCIS revised forms pertaining to fee 

waivers and appeals/motions, in an effort to be more clear, concise, and user-friendly. 

However, improvements are needed in USCIS’s calculation of processing times, responses 

to service requests, and fee waiver processing. 

224 Information provided by USCIS (Apr. 28, 2014). 

Annual Report to Congress – June 2014 47 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCIS Processing Times 

and their Impact on 

Customer Service 

Responsible USCIS Offices: 

Office of Performance and Quality and the Customer Service 

and Public Engagement Directorate 

Expectations for individuals and employers seeking 

immigration benefits are set based on processing times, and 

they have important customer service impacts. USCIS call 

centers will not initiate service requests to check case status 

with USCIS local offices and service centers until cases are 

outside posted processing times.225 Similarly, in FiscalYear 

(FY) 2014, the Ombudsman instituted a new policy not 

to accept requests for case assistance until cases have been 

pending 60 days past posted processing times. Stakeholders 

have raised concerns regarding USCIS processing time 

accuracy, the method by which they are calculated, and the 

timeliness with which they are posted. 

background 

USCIS posts processing times for immigration petitions 

and applications on its website.226 See Figure 17: 

Average Processing Times for Forms N-400, Application for 

Naturalization, and I-485, Application to Register Permanent 

Residence or Adjust Status. 

Stakeholders rely on posted processing times when applying 

for immigration benefits. Individuals and employers seek 

accurate processing time information in order to make 

decisions about major life events such as immigration, travel, 

associated costs and timely filing of renewal applications. 

225 See USCIS Webpage “e-Request;” https://egov.uscis.gov/e-Request/Intro.do?locale=en_US (accessed Jan. 2, 2014).
�

226 USCIS Webpage, “USCIS Processing Time Information;” https://egov.uscis.gov/cris/processTimesDisplay.do (accessed Jan. 2, 2014).
�

48 Citizenship and Immigration Services Ombudsman 
FIGURE 17: AvERAGE PROCESSInG TIMES FOR FORMS n -400 AnD I -485 

Application for naturalization (n-400) 

Average Processing Time 

(in months) 

Application to Register Permanent Residence or Adjust Status (I-485) 

Average Processing Time 

(in months) 

Source: Information provided by USCIS (May 13, 2014). 

Annual Report to Congress – June 2014 49 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For USCIS, processing times are important to measure 

agency performance in adjudication, identify operational 

challenges such as delays in resolving background checks, 

plan and implement new initiatives, and understand agency 

capacity in various offices. 

Upon publication of the 2007 fee rule, USCIS established 

new processing time goals.227 The USCIS Processing Time 

Information website states: 

USCIS usually processes cases in the order they are 

received. For each type of application or petition 

we have specific workload processing goals. For 

example, we try to process naturalization cases 

within five months of the date we receive them 

and immediate relative petitions (for the spouse, 

parent or minor child of a U.S. citizen) within six 

months of the receipt date. Sometimes the volume 

of caseswereceive is so largethat it prevents us from 

achieving our goals, but we never stop trying.228 

USCIS calculates processing times for a particular application 

or petition type by subtracting the number of cases received 

each month from the total number of “active” pending cases 

(see below). For example, if the number of active pending 

cases was 200, and in each of the past four months USCIS 

received 50 cases, the processing time would be calculated 

as four months. This approach takes approvals and denials 

into account only insofar as the number of pending cases 

decreases when cases are completed. 

Active pending cases are those cases that are available for 

processing, as opposed to cases that are waiting for visa 

availability or for applicants or petitioners to accomplish a 

step in the process, such as re-taking the naturalization test 

or responding to a Request for Evidence (RFE). Cases subject 

to delays due to background checks are included within the 

active pending cases for purposes of calculating processing 

times. The Ombudsman notes that USCIS customers may 

be unaware of what actions by USCIS or the applicant or 

petitioner may lead to tolling of processing times. 

If USCIS is processing a particular type of application/ 

petition in less time than the agency processing goal, 

the processing time will be the goal published in months (e.g., 

“Six Months”).229 For case types that are taking longer than 

the processing goal, USCIS lists the filing date (e.g., “December 

26, 2013”) of the cases it is currently processing.230 Processing 

times are posted monthly, 30 days after the prior month’s 

close. For example, April’s processing times will be posted by 

May 30th. 

Cases where USCIS has encountered difficulty in resolving 

background checks or has issued an RFE often take longer than 

posted processing times, with limited information available 

on how long USCIS will take to complete adjudication. Posted 

processing times also fail to take into account accelerations or 

delays that may be anticipated by USCIS based on workload 

shifts or changes in filing patterns. As such, processing times 

can increase significantly, without prior notice to the public. 

Some applicants or petitioners have the option of upgrading 

certain types of filings to “premium processing.”231 

Employers use premium processing to fill positions rapidly, 

but it is not available for all types of immigration filings. 

There is also a discretionary process for expediting applications 

or petitions for individuals or employers, but that process 

is limited to individuals who are confronted with specific 

compelling circumstances.232 

Ongoing Concerns 

Stakeholders are unable to accurately determine how long a 

case might take to be completed based on the methodology 

USCIS uses to calculate its posted adjudication timelines. 

These processing times are not an average processing time 

for all cases in a particular queue. Nor do they represent 

the time it may take for most cases to be completed. 

When cases are outside processing times, individuals, 

employers, and their representatives schedule InfoPass 

appointments and initiate service requests online or by 

contacting the USCIS National Customer Service Center 

(NCSC).233 They also request assistance from Congressional 

offices and the Ombudsman. USCIS, in turn, devotes 

significant resources to customer service inquiries that 

could otherwise be directed to adjudicating applications 

and petitions. 

227 “U.S. Citizenship and Immigration Services Fee Schedule; Final Rule,” 75 Fed. Reg. 58961 (Sept. 24, 2010) (codified at 8 C.F.R. §§ 103, 204, 244 

and 274). 

228 Supra note 226. 

229 Id. 

230 Id. 

231 Immigration and Nationality Act § 286(u). Premium processing is available for a fee of $1,225 for specific form types. See Instructions for Form I-907,
�

Request for Premium Processing Service, OMB No. 1615-0048, Expires 10/31/2014; http://www.uscis.gov/sites/default/files/files/form/i-907instr.pdf 

(accessed May 14, 2014).
�

232 USCIS Webpage, “Expedite Criteria” (Jun. 17, 2011); http://www.uscis.gov/forms/expedite-criteria (accessed Feb. 24, 2014).
�

233 USCIS has informed the Ombudsman that call center contractors in Tier 1 and Immigration Service Officers in Tier 2 have access to the exact same 

posted processing time information as the public.
�

50 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Ombudsman urges USCIS to consider new approaches 

to calculating case processing times. USCIS could 

provide stakeholders more transparency in processing 

time information by stating the time, perhaps as a range, 

within which a certain percentage of cases are completed. 

For example, posted processing times could state that 

naturalization applications are adjudicated within six to 

eight months for 90 percent of cases. Processing times 

would also be improved if data were updated more timely. 

USCIS Customer Service: 

Ensuring Meaningful Responses 

to Service Requests 

Responsible USCIS Offices: 

Field Operations and Service Center Operations Directorates 

USCIS generates “service requests,” through the Service 

Request Management Tool (SRMT), which are transferred 

to the USCIS facility where the matter is pending. USCIS 

service centers and local offices then respond, often with 

general templates that provide little information other 

than the case remains pending. In these circumstances, 

stakeholders find it necessary to make repeat requests, 

schedule InfoPass appointments at USCIS local offices, 

and/or submit requests for case assistance to Congressional 

offices and the Ombudsman. These repeat requests increase 

the overall volume of calls and visits to USCIS – amplifying 

the level of frustration experienced by customers and costing 

the agency, as well as individuals and employers, both time 

and money. Unhelpful responses to USCIS service requests 

continue to be a pervasive and serious problem. 

background 

Inquiries from individuals and employers are often 

channeled through SRMT, an electronic system to track 

and transfer service requests. Where USCIS call center staff 

cannot resolve a customer’s inquiry, the agency uses SRMT to 

transfer requests to a USCIS local office or service center. An 

individual can also make an e-Request to generate an SRMT 

inquiry.234 The Customer Service and Public Engagement 

Directorate in most cases does not provide substantive 

responses to service requests. Rather, the USCIS office of 

jurisdiction provides the response to the customer. 

On March 5, 2012, the Ombudsman issued 

recommendations regarding service requests.235 The 

Ombudsman recommended that USCIS: 1) implement 

national quality assurance review procedures for service 

requests and make quality a priority; 2) establish a 

follow-up mechanism in the SRMT system so that USCIS 

employees can provide customers with multiple responses 

(e.g., initial, follow-up, final) for the same service request; 

3) expand self-generated e-Requests to all form types; 

4) pilot mandatory supervisory review of certain SRMT 

responses; and 5) post SRMT reports on the USCIS website 

and standardize the use of SRMT reports to identify spikes, 

trends, or other customer service issues. USCIS responded 

on June 14, 2012, stating: 

Quality has been and will continue to be a priority 

for USCIS – not only in terms of responses to service 

requests, but with respect to all of our customer 

interactions and related work. In line with this 

priority, USCIS formed an operational working 

group to focus on issues related to the Service 

Request Management Tool (SRMT). The working 

group, which held its initial meeting on March 

22, 2012, will consider this recommendation as 

part of its efforts ... USCIS would like to reiterate 

that both the Field Operations Directorate and 

the Service Center Operations Directorate have 

established SRMT quality review programs that 

track and analyze relevant data to ensure quality 

and identify potential areas for improvement.236 

The acceptance, review, and resolution of service requests 

is a major USCIS customer service undertaking. During 

this reporting period, USCIS received 1,136,262 service 

requests.237 The target response time for service requests is 

15 calendar days for most inquiries. USCIS aims to respond 

in five calendar days for an expedite request and 30 days 

for Deferred Action for Childhood Arrivals denial reopening 

requests.238 Approximately 60 percent of SRMTs meet these 

goals. The most prevalent reasons for contacting NCSC have 

been non-delivery of documents, processing times, change 

of address, and typographical error.239 See Figure 18: Top 

Four Service Request Types. 

234 Supra note 225. 

235 USCIS Webpage, “USCIS Service Requests: Recommendations to Improve the Quality of Responses to Inquiries From Individuals and Employers;” 

http://www.dhs.gov/uscis-service-requests-recommendations-improve-quality-responses-inquiries-individuals-and-employers (accessed May 7, 2014). 

236 USCIS Response to Recommendation 52 (Jun. 14, 2012); http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20Formal%20Recommendations/USCIS%20Formal%20Response%20to%20Recommendation%2052.pdf (accessed Apr. 7, 2014). 

237 Supra note 224. 

238 Id. 

239 Id. 

Annual Report to Congress – June 2014 51 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIGURE 18: TOP FOUR SERvICE REqUEST TyPES 

(Apr. 1, 2013 – Feb. 28, 2014) 

 

nUMbER OF InqUIRIES 

400,000 

350,000 

300,000 

250,000 

200,000 

150,000 

100,000 

50,000 

0 

Change of Address Processing Times Nondelivery Typographical Error 

Source: Information provided by USCIS (Apr. 28, 2014). 

USCIS has expanded e-Request capabilities, and individuals 

and employers now can generate SRMT inquiries online 

for cases beyond posted processing times, typographical 

errors, nondelivery of USCIS notices, and requests for 

special accommodations at a USCIS office. A total of 67,978 

e-Requests were made during this reporting period. This 

self-generating service request capacity has been promoted 

through webinars, email messages, focus groups, a brochure 

distributed by USCIS community relations officers and 

through USCIS’s crowd-sourcing site, Idea Community. 

Since the Ombudsman issued its 2012 recommendations, 

USCIS formed a customer service working group. This 

working group met weekly between March 2012 and March 

2013, and focused on SRMT reports and templates. The 

group continues to review the SRMT process. 

With respect to a follow-up mechanism in SRMT, USCIS 

continues in various instances to provide an interim 

response (e.g., the file has been requested) and then close 

the request with no follow-up. Where the interim response 

does not answer the inquiry or resolve the problem, the 

individual or employer is left to initiate another service 

request or seek redress through other avenues. USCIS is no 

longer providing estimated case completion times in many 

responses to SRMTs. 

Approximately 70 percent of all requests for assistance filed 

with the Ombudsman were submitted by individuals and 

employers who reported that they first attempted to resolve 

their problems by submitting a service request through the 

NCSC.240 Despite these efforts, individuals and employers 

did not receive responses they considered to be satisfactory 

and sought assistance from the Ombudsman. 

Ongoing Concerns 

Responses to customer inquiries are valuable only where 

they include pertinent information, such as a projected 

timeline for adjudication or an explanation of processing 

delays that prompted the service request. Although some 

USCIS regions and service centers perform quality assurance 

reviews for service request responses – monitoring a 

sampling of responses to identify the response time, 

accuracy in spelling and grammar, and accuracy of the 

response – USCIS has not yet implemented a national quality 

assurance review to identify the accuracy or completeness of 

those responses. 

In addition, customers are often told to wait a specified 

period of time before submitting another service request. 

In one case assistance request submitted to the Ombudsman, 

the petitioner stated, 

[A]ll we have received from the USCIS is a generic 

message stating “your case is under review and you 

should receive a notice of action in 30 days.” Well 

we have [waited] many such 30 day periods without 

any action of notice or any clear message from 

USCIS. USCIS’s lack of transparency is frustrating and 

overwhelming at times. We need help understanding 

why our case has been pending for an extended 

duration. Our concern is that USCIS has misplaced 

our case/paperwork ... 

240 Information collected by the Ombudsman on Form DHS-7001, Case Assistance Form. 

52 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ongoing delays and uninformative responses increase 

customer frustration and create additional work for USCIS, 

due to repeated customer inquiries. 

With SRMT, USCIS has an effective process for receiving, 

tracking and transferring requests for assistance to USCIS 

field offices and service centers. However, individuals 

and employers continue to report agency responses are 

often uninformative and not timely. Ensuring meaningful 

responses to service requests is critical to successful customer 

service, and doing so would reduce the overall number of 

customer service interactions, thereby freeing resources that 

could be focused on adjudications and other agency needs. 

Issues with USCIS Intake 

of Form G-28, Notice of Entry 

of Appearance as Attorney or 

Accredited Representative 

Responsible USCIS Offices: 

Office of Intake and Document Production and the 

Field Operations and Service Center Directorates 

USCIS is not issuing notice to attorneys or accredited 

representatives when it rejects a deficient Form G-28, Notice 

of Entry of Appearance as Attorney or Accredited Representative. 

The rejection of a notice of appearance, without any 

notification to the submitting attorney or accredited 

representative, raises concerns pertaining to the fundamental 

right to counsel. It also creates practical difficulties when 

the attorney or accredited representative is not notified of 

USCIS actions, and is, therefore, unable to inform the client 

of or advise on how to respond to agency actions, including 

interview notices, requests for evidence, and denials. 

background 

Under the regulations, applicants or petitioners appearing 

before USCIS may be represented, at no cost to the 

government, by an attorney or an accredited representative 

of a recognized organization.241 Once an attorney or 

accredited representative has filed a properly completed 

Form G-28 on behalf of an applicant or petitioner, USCIS is 

required to serve documents and notices on the attorney or 

accredited representative.242 In such instances, USCIS will 

send original notices and correspondence to the attorney or 

accredited representative noted on the Form G-28, with a 

copy to the applicant or petitioner.243 

Failure to list an applicant or petitioner’s attorney or 

accredited representative, without due cause, would 

constitute unwarranted interference by USCIS in the attorney 

or accredited representative client relationship. Failure to 

provide an attorney of record or accredited representative 

with notices and documents would greatly impede, if not 

extinguish, the attorney’s or accredited representative’s 

ability to zealously represent the client before USCIS. As 

such, it is critical that USCIS honor its obligation to serve 

documents and notices on the attorney of record or 

accredited representative, as specified in the regulations.244 

Ongoing Concerns 

Stakeholders have raised issues regarding USCIS acceptance 

of G-28 forms, and USCIS has confirmed that it is not 

notifying attorneys or accredited representatives where 

the form has been rejected.245 When USCIS receives a 

technically deficient Form G-28, it marks the form invalid 

and places it upside down at the bottom of the non-record 

side of the administrative file without notifying the attorney 

or accredited representative that the Form G-28 was not 

properly filed. The attorney or accredited representative 

only becomes aware that he or she is not listed when the 

client begins to receive notices from USCIS, but the attorney 

or accredited representative does not. Failure to notify the 

customer or the attorney or accredited representative of 

a deficient Form G-28 denies the attorney or accredited 

representative the opportunity to correct the mistake and 

denies the customer the right to be represented. 

241 8 C.F.R. §§ 103.2(a)(3) and 292.5(b). See definition of “Accredited Representative” at 8 C.F.R. § 292.1(a)(4).
�

242 8 C.F.R. § 292.5(a). A “properly completed Form G-28” is a notice of appearance containing sufficient information to determine that: 1) an attorney 

appears to be duly licensed; 2) an attorney-client relationship exists between the submitting attorney and the applicant or petitioner; and 3) there is a valid 

address to which notices and documents can be sent. A Form G-28 submitted without the required information in Item Numbers 1.-1.b.1 or 

2.-2.b. will be rejected.” See Instructions for Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, OMB No. 1615-01015,
�

Expires 02/29/2016, http://www.uscis.gov/sites/default/files/files/form/g-28instr.pdf (accessed May 14, 2014).
�

243 USCIS Policy Memorandum, “Representation and Appearances and Interview Techniques; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 

and 15; AFM Update AD11-42, PM-602-0055.1” (May 23, 2012); http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2012/May/
�

AFMs5-23-12.pdf (accessed Apr. 29, 2014).
�

244 8 C.F.R. § 292.5(a).
�

245 See USCIS Meeting With the American Immigration Lawyers Association, Questions and Answers (Oct. 23, 2013). “When a G-28 is found to be 

defective (i.e., invalid) at the Lockbox, the standard procedure is not to recognize it and move the case on for processing. The Lockbox does not send any 

notice to the attorney when the G-28 is invalid. When a case is rejected and the G-28 is defective (i.e., invalid) only the applicant/petitioner will receive 

the rejected application/petition and notice, but we do not notify the applicant/petitioner that their G-28 is invalid.”
�

Annual Report to Congress – June 2014 53 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Example 

After filing Form I-589, Application for Asylum and 

Withholding of Removal on behalf of the client, the 

attorney did not receive any notices of action or other 

correspondence from USCIS. The client, however, did 

receive USCIS mailings. The Ombudsman submitted 

an inquiry to USCIS and was able to determine that 

the attorney had inadvertently submitted an outdated 

version of Form G-28. Due, in part, to the attorney 

not receiving notice, the applicant missed the asylum 

interview and was referred to Immigration Court. 

After the Ombudsman requested further review, 

USCIS decided that since the Form G-28 was originally 

filed (and subsequently refiled two weeks later) that it 

would seek to terminate proceedings and provide the 

applicant with an affirmative asylum interview. 

To resolve issues with Form G-28 rejections, USCIS suggests 

that legal representatives contact the Lockbox support email 

(Lockboxsupport@uscis.dhs.gov). This is only helpful 

where the attorney or accredited representative is aware 

that the Form G-28 was rejected.246 

USCIS policy and practice relating to rejected Form G-28s 

is problematic for a number of practical reasons. Many 

applicants and petitioners rely on their attorney or accredited 

representative to receive notices and other correspondence 

from USCIS because they do not have a secure place to 

receive mail, they have limited proficiency in English, or 

they lack knowledge of U.S. legal procedures and rely on 

their legal representative to ensure deadlines are met and 

applications are filed with the appropriate office. 

USCIS has acknowledged problems with its current method 

for handling Form G-28 rejections. The agency indicated 

that it has formulated a number of solutions that are being 

reviewed by agency leadership. To date, USCIS has not 

stated when these changes may be implemented, nor has 

it proposed any interim solutions. 

Fee Waiver Processing Issues 

Responsible USCIS Offices: 

Office of Intake and Document Production and the 

Field Operations and Service Center Directorates 

Fee waivers are important to vulnerable segments of the 

immigrant community, including elderly, indigent, or 

disabled applicants. This year’s Report provides an update 

of issues described in the Ombudsman’s 2013 Annual 

Report,247 including improvements made by USCIS, and 

summarizes stakeholder reports of continued problems 

that affect certain aspects of fee waiver processing. 

Background 

USCIS restructured and improved the fee waiver process 

in 2010, by publishing Form I-912, Request for Fee Waiver. 

When USCIS published the form, it stated: 

The proposed fee waiver form is the product 

of extensive collaboration with the public. In 

meetings with stakeholders, USCIS heard concerns 

that the absence of a standardized fee waiver form 

ledto confusion aboutthecriteriathathad tobemet 

as well as the adjudication standards ... The new 

proposed fee waiver form is designed to verify that 

an applicant for an immigration benefit is unable 

to pay the fee for the benefit sought. The proposed 

form provides clear criteria and an efficient 

way to collect and process the information.248 

USCIS also published guidance on fee waiver adjudication 

standards in a 2011 Policy Memorandum titled 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 AD11-2.

249 This guidance 

supersedes and rescinds all prior memoranda regarding 

fee waivers.250 

246 American Immigration Lawyers Association, AILA FAQs: “Completing the New G-28 Form Answers Provided by USCIS Office of Intake and Document 

Production” (Oct. 11, 2013). See also Alan Lee, “G-28 Authorization of Representation Becomes a Trial for Attorneys/Other Representatives” ILW.com 

(Nov. 13, 2013); http://discuss.ilw.com/showthread.php?36220-Article-G-28-Authorization-Of-Representation-Becomes-A-Trial-For-Attorneys-OtherRepresentatives-by-Alan-Lee (accessed Jan. 17, 2014). Although USCIS has advised contacting the Lockbox Support e-mail for assistance with G-28 issues,
�

the Lockbox filing tips clearly state, “If your client received a receipt notice, but you did not, it is likely that your G-28 was not properly filed. Do not send 

a follow-up Form G-28 to a Lockbox facility. Send follow-up Forms G-28 to the USCIS office where the case was assigned. Be sure to include the Receipt 

Number of the associated application/petition on Form G-28 in Part 3, Question 7.” USCIS Webpage, “G-28 Notice of Entry of Appearance as Attorney or 

Accredited Representative:Tips for Lockbox Facility Filings” (Feb. 12, 2014); http://www.uscis.gov/forms/g-28-notice-entry-appearance-attorney-oraccredited-representative-tips-lockbox-facility-filings (accessed Jan. 17, 2014).
�

247 Ombudsman Annual Report 2013 (Jun. 2013), pp. 47-49; http://www.dhs.gov/sites/default/files/publications/cisomb_2013_annual_report%20
�

508%20final_1.pdf (accessed May 29, 2014).
�

248 USCISWebpage, “USCIS Published First-Ever Proposed FeeWaiver Form” (Nov. 22, 2010);Website link no longer available.
�

249 USCIS Policy Memorandum, “Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule: Revisions to the Adjudicator’s Field 

manual (AFM) Chapter 10.9, AFM Update AD11-26” (Mar. 13, 2011); http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/
�

March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf (accessed Apr. 29, 2014).
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250 Id. 

54 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCIS revised Form I-912 and instructions in May 

2013.251 USCIS also published amended tips on fee 

waivers on its website.252 The tips contain useful 

information and clarifications, including contact information 

for the receipting centers, referred to as Lockboxes 

(Lockboxsupport@uscis.dhs.gov), which can be used to 

inquire with USCIS about fee waiver denials. 

Pursuant to established protocols, the Ombudsman does not 

accept fee waiver case assistance requests unless the applicant 

first attempts to resolve the problem through the Lockbox. 

The USCIS Lockbox support aims to respond to inquiries 

within five business days. 

Ongoing Concerns 

Calculating Household Size. The revised Form I-912 

instructions changed the calculation of household size. 

The household total is critical, as it determines by reference 

to the Federal Poverty Guidelines whether the individual is 

income-eligible for a fee waiver.253 It is unclear whether the 

applicant is included in counting the household size; some 

sections of Form I-912 and the instructions indicate the 

applicant should be counted, while others do not.254 

In addition, the revised Form I-912 and instructions, for 

the first time, call for counting non-family members in 

household size, under certain circumstances. The 2011 

Policy Memorandum does not call for non-family 

members to be counted in the household size calculation.255 

These inconsistencies cause confusion and can lead to 

unnecessary denials. 

Fee Waiver Rejections. The Ombudsman’s 2013 Annual 

Report recounted stakeholder concerns regarding multiple 

rejections of waiver applications by the USCIS Lockbox 

facilities, and inconsistent application of fee waiver 

standards. These concerns continued. The Ombudsman 

received reports that multiple, identical submissions were 

necessary before the request was favorably adjudicated, 

often based upon the same evidence included with the 

original submission. Stakeholders received rejections 

and denials even after submitting income documentation 

such as tax returns, or when USCIS disputes that a public 

benefit qualifies as a means-tested benefit, despite evidence 

presented to show that it is such a benefit. Stakeholders also 

recounted inconsistent decisions on fee waiver applications 

which, in all substantive respects, are identical. In a June 27, 

2013 letter to USCIS, stakeholders stated: 

We are deeply concerned about the widespread pattern 

of denials of eligible applicants that our organizations 

and networks have been experiencing over the last 

few months ... We are also concerned that USCIS’s 

own systems for ensuring quality control have not 

identified this problem. While we appreciate USCIS’s 

willingness to review individual case examples, we 

feel a case-by-case is not effective in this instance, and 

we are seeking a systemic resolution to what we see 

as a systemic problem.256 

USCIS has rapidly sought to resolve individual cases brought 

to the agency’s attention by the Ombudsman, but systemic 

issues remain and require a review of guidance and form 

instructions, as well as Lockbox intake procedures. The 

Ombudsman urges USCIS to host a public engagement 

on this program to hear stakeholder feedback. 

USCIS Administrative Appeals 

Office: Ensuring Autonomy, 

Transparency, and Timeliness 

to Enhance the Integrity of 

Administrative Appeals 

Responsible USCIS Office: 

Administrative Appeals Office 

In the 2013 Annual Report, the Ombudsman discussed 

issues pertaining to the Administrative Appeals Office (AAO), 

including a lack of transparency regarding AAO policies 

and procedures, and challenges for pro se individuals who 

seek information in plain English about the administrative 

appeals process. Over the past year, USCIS eliminated 

251 USCIS Webpage, “Forms Update” (May 2013); http://www.uscis.gov/forms-updates (accessed Apr. 29, 2014). 

252 USCIS Webpage, “Tips for Filing Form I-912, Request for Fee Waiver” (Jan. 15, 2014); http://www.uscis.gov/forms/tips-filing-form-i-912-requestfee-waiver (accessed Apr. 21, 2014).
�

253 See Form I-912P, HHS Poverty Income Guidelines for Fee Waiver Request states how much income is the limit per household size for fee waiver eligibility.
�

See USCIS Webpage; http://www.uscis.gov/i-912p (accessed Apr. 14, 2014).
�

254 Form I-912, Request for Fee Waiver, instructions at Section 5, line 9 asks, “other than you, how many others in your household depend on the stated 

income?” This directs that the applicant should not count himself. Section 5 does not have any other place to include the applicant. However, elsewhere 

on the Form I-912, at question 3 on page 4, it indicates that applicant should include him or herself in the household total. The Poverty Guidelines used 

for fee waivers are published as Form I-912P, HHS Poverty Guidelines for Fee Waiver Request; see USCIS Webpage, “I-912P, HHS Poverty Guidelines for Fee 

Waiver Request” (Jan. 28, 2014); http://www.uscis.gov/i-912p (accessed Apr. 14, 2014).
�

255 Supra note 249.
�

256 Letter from the Catholic Legal Immigration Network, Hebrew Immigrant Aid Society, and World Relief (Jun. 27, 2013).
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Annual Report to Congress – June 2014 55 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

lengthy processing times once cases reach the AAO and 

revised its website. However, stakeholders still report issues 

stemming from the manner in which the AAO receives, 

reviews, and decides appeals. Of particular concern is the 

need for an AAO practice manual; the absence of any up-todate statutory or regulatory standard for AAO operations; 

the AAO’s lack of direct authority to designate precedent 

decisions; and the length of time for cases to be transferred 

to the AAO from USCIS service centers and field offices for 

review, and vice versa for remand. 

background 

With appellate jurisdiction over approximately 55 different 

immigration applications and petitions, the AAO is charged 

with reviewing certain decisions issued by USCIS service 

centers and district offices.257 The authority to adjudicate 

appeals of these decisions is delegated to the AAO by the 

Secretary of Homeland Security, pursuant to the Homeland 

Security Act of 2002.258 

In 2005, the Ombudsman published recommendations 

focusing on the transparency, quality and timeliness of the 

decisions issued by the AAO.259 More than eight years later, 

USCIS has eliminated lengthy processing times for all case 

types once cases reach the AAO.260 Additionally, the AAO 

has updated and revised its website content to provide AAO 

contact information and filing instructions. USCIS has also 

recently revised Form I-290B, Notice of Appeal or Motion and 

instructions; a new version was made available for use on 

February 12, 2014.261 

Ongoing Concerns 

Publication of an AAO Practice and Procedures Manual. 

Stakeholders regularly note that AAO procedures could 

be made more transparent through the publication of a 

practice manual providing procedural guidance.262 The U.S. 

Department of Justice’s (DOJ) Board of Immigration Appeals 

(BIA) and Executive Office for Immigration Review publish 

practice manuals as a public service to the parties who 

appear before them. These practice manuals are periodically 

updated and have been highly regarded by the public as 

being helpful guides and fostering greater uniformity 

in practice and decisions.263 An AAO practice manual 

that provides substantive, procedural, and operational 

information in plain English and a user-friendly format 

would be similarly useful. Over the last year, the AAO 

has confirmed to the Ombudsman that it started drafting 

a practice manual similar in structure to that of the BIA; 

however, the AAO has not released a draft document or 

publicly stated a proposed publication date.264 

Publication of Revised Regulations. Stakeholders have 

expressed concern regarding the AAO’s autonomy, explaining 

that it is often thought of as an extension of USCIS service 

centers and field offices, and not an independent review 

panel.265 Organizationally, the AAO is part of USCIS, but is 

independent of any specific USCIS district office or service 

center. Like other USCIS components, the AAO follows 

agency guidance and does not create new policy. The AAO 

consults with the USCIS Office of the Chief Counsel if an 

appeal involves novel or complex issues requiring legal 

interpretation and to develop uniform agency guidance. 

The AAO may also engage with USCIS adjudicating 

components on operational matters as well as on broad 

adjudication issues and trends.266 

The lack of regulations governing the AAO’s operations and 

role with respect to USCIS policies creates an impression 

among the public that the AAO merely “rubber-stamps” 

USCIS decisions. To avoid any appearance of bias, regulations 

could clearly articulate that the AAO is intended to function 

as an autonomous subcomponent of the agency, charged 

with providing appellants with a venue for administrative 

review of their immigration benefits claims. 

257 8 CFR § 103.1(f)(3)(iii). 

258 Pub. L. 107-296. See DHS Delegation Number 0150.1 (effective Mar. 1, 2003); see also 8 C.F.R. § 2.1 (2003).
�

259 Ombudsman Recommendation 20 (Dec. 6, 2005); http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_20_Administrative_Appeals_12-07-05.
�

pdf (accessed Apr. 29, 2014).
�

260 USCIS Webpage, “AAO ProcessingTimes” (May 12, 2014); http://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appealsoffice-aao/aao-processing-times (accessed Apr. 6, 2014). The AAO currently lists all case types as being “current,” which the AAO defines as “[w]ithin six 

months or less from the time when [the AAO received] the appeal.”
�

261 USCIS Webpage, “Forms Update” (Jan. 2014); http://www.uscis.gov/forms-updates (accessed Apr. 29, 2014).
�

262 Ombudsman Teleconference, “The USCIS Administrative Appeals Office (AAO)” (Dec. 19, 2012).
�

263 See BIA Practice Manual; http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm, and Executive Office for Immigration Review’s Immigration 

Court Practice Manual; http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm (both accessed Apr. 6, 2014).
�

264 Information provided by the AAO (Feb. 7, 2013 and Mar. 5, 2014).
�

265 Supra note 262.
�

266 Information provided by USCIS (Dec. 18, 2012).
�

56 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Designating and Publishing Precedent Decisions. 

Pursuant to the regulations, AAO decisions may be 

designated as precedent by the Secretary of Homeland 

Security, with the Attorney General’s approval.267 The process 

for designating a precedent decision, described on the USCIS 

website, involves review by no fewer than seven entities 

within USCIS, as well as the Attorney General.268 Due to this 

cumbersome process, precedent decisions are infrequently 

issued. The AAO did not issue a precedent decision in FY 

2013; in FY 2012, the AAO published only one precedent 

decision;269 no precedent decisions were issued in FY 

2011;270 and in FY 2010, the AAO published only two 

precedent decisions.271 

More AAO precedent decisions would improve consistency 

in adjudications by offering USCIS adjudicators clearer 

paths to follow in assessing the legal and policy issues 

encountered in their assigned cases.272 Since precedent 

decisions serve as binding legal authority for determining 

later cases involving similar facts or issues, the publication 

of more precedent decisions would also mean appellants 

and legal representatives would have additional information 

regarding legal and evidentiary requirements. While the 

AAO recognizes the need for precedent decisions, at the 

Ombudsman’s 2013 Annual Conference, the AAO confirmed 

there is no current plan to allow it to independently make 

such designations. 

Create a Searchable Index of Decisions. While AAO 

non-precedent decisions are generally made available on 

the USCIS website within weeks of issuance, they are not 

cataloged with a searchable index for quick review and 

retrieval. Creating a searchable index is not an AAO priority, 

given the availability of commercial legal research services. 

This, however, fails to take into account that pro se appellants 

and community-based organizations representing lowincome immigrants may not be able to afford costly private 

research services. A searchable index of AAO decisions, 

similar to what other government agencies, such as the BIA, 

provide, would better serve USCIS customers. 

Timely Forwarding of Appeals to the AAO. The AAO 

considers a case to be “current” as long as it is decided 

within six months from the date it is received by the AAO, 

and does not include the time the appeal was pending 

initially with the USCIS field office or service center of 

original jurisdiction. Appeals or motions are not filed 

directly with the AAO; instead they are filed with the 

USCIS field office, service center or Lockbox that made 

the decision.273 Generally, upon submission of an appeal, 

the USCIS office that denied the application or petition 

is responsible for reviewing the appeal, and determining 

within 45 days of receipt whether to reverse the decision 

and reopen the case.274 This is referred to as “initial field 

review.” If the appeal is meritorious, the case will be 

reopened or reconsidered, whereas an unfavorable review 

results in the appeal being forwarded “promptly” to the 

AAO.275 Stakeholders report that USCIS field offices and 

service centers are holding cases well beyond the 45-day 

period specified in regulations, prior to forwarding them 

to the AAO.276 There are also delays in forwarding appeals 

remanded from the AAO back to USCIS field offices and 

service centers. 

267 8 C.F.R. § 103.3(c). 

268 See USCIS webpage, “Administrative Appeals Office: Precedent Decisions;” http://www.uscis.gov/sites/default/files/USCIS/Laws/AAO/AAO%20
�

DHS%20Precedent%20Decision%20Process%20Print%20Version.pdf (accessed Jan. 28, 2014).
�

269 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012); http://www.justice.gov/eoir/vll/intdec/vol25/3752.pdf (accessed Mar. 18, 2013).
�

270 Supra note 266.
�

271 Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010); http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf (accessed Mar. 18, 2013), and Matter of 

Chawathe, 25 I&N Dec. 369 (AAO 2010); http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdf (accessed Mar. 18, 2013).
�

272 Supra note 262.
�

273 See USCIS Webpage, “Direct Filing Address for Form I-290B, Notice of Appeal or Motion” (Apr. 3, 2014); http://www.uscis.gov/i-290b-addresses 

(accessed Apr. 10, 2014).
�

274 8 C.F.R. § 103.3(a)(2)(iii); see also USCIS webpage “The Administrative Appeals Office (AAO), Appeal Process” (Apr. 17, 2014); http://www.uscis.
�

gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/administrative-appeals-office-aao (accessed Apr. 29, 2014). Both 

indicate the appeal should be forwarded to the AAO within 45 days. However, the Adjudicator’s Field Manual (AFM), Chapter 10.8(a)(1), “Preparing the 

Appellate Case Record: Administrative Appeals (AAO) Cases;” http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html (accessed 

Apr. 29, 2014) is silent on the number of days within which a decision must be made on the appeal and only states that if the arguments fail to overcome 

the basis for denial, “the appeal and related record must be promptly forwarded to the AAO.”
� 

275 8 C.F.R. § 103.3(a)(2)(iv);The Adjudicator’s Field Manual (AFM), Chapter 10.8(a)(1), “Preparing the Appellate Case Record: Administrative Appeals 

(AAO) Cases;” http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html (accessed Apr. 29, 2014). The regulations and USCIS field 

guidance do not make clear what constitutes “promptly” for purposes of forwarding an appeal to the AAO. 

276 Supra note 262. Pursuant to 8 C.F.R. § 103.3(a)(2)(iii), “Within 45 days of receipt of the appeal, the reviewing official may treat the appeal as a 

motion to reopen or reconsider and take favorable action. However, that official is not precluded from reopening a proceeding or reconsidering a decision 

on his or her own motion under §103.5(a)(5)(i) of this part in order to make a new decision favorable to the affected party after 45 days of receipt of 

the appeal.” 

Annual Report to Congress – June 2014 57 
	 	

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The AAO and other USCIS components are aware of this 

issue, which has become more apparent with the AAO 

eliminating its own processing delays. The AAO noted 

that because USCIS field offices do not necessarily use the 

same electronic case management system, the AAO cannot 

determine electronically when an appeal is received by 

a field office, how long the appeal remains pending, or 

when the appeal has actually been forwarded to the AAO 

for review.277 The AAO did state that recent revisions to the 

Form I-290B and instructions, including a drop-down list 

to select the USCIS office that issued the denial decision,278 

should facilitate easier tracking of appeals. Additionally, 

USCIS informed the Ombudsman that the agency established 

a working group last year to improve tracking of appeals 

through the initial review process at USCIS field offices. As 

a result of this effort, USCIS stated that it will issue in the 

third quarter of FY 2014 standard operating procedures on 

reporting requirements for the disposition of Forms I-290B 

and conduct in FY 2014 a full inventory of this form type. 

AAO Decisional Data. In the 2005 recommendations, the 

Ombudsman noted that statistics on AAO decision-making 

are not published by USCIS.279 In its response to those 

recommendations, USCIS indicated that the AAO maintains 

detailed data on the number of appeals received, the number 

of adjudicator decisions that are sustained (approved) and 

dismissed (denied), and the total number of decisions issued 

each year.280 At that time, USCIS stated that once technical 

issues were resolved, the data would be added to the USCIS 

website. While it has yet to be published on the agency 

website, below is AAO data, provided by USCIS, for select 

form types. See Figure 19: AAO Select Receipts, Sustains, 

and Dismissals. For initial benefit adjudication data, See 

Appendix 4: Initial Benefit Adjudication Data for Commonly 

Appealed Form Types. 

USCIS noted that this data provides the disposition of appeals 

that have been transferred to the AAO, and does not include 

favorable dispositions during initial field review. Also, 

this data does not include other AAO dispositions 

(e.g., rejections, withdrawals, and remands). 

The Ombudsman will further evaluate and discuss this data 

with USCIS in the coming year to better understand the 

disparities in the AAO sustain and dismissal rates among 

immigration benefit types. Publication of AAO decision 

statistics on a quarterly or annual basis would enhance 

transparency in administrative appeals. 

FIGURE 19: AAO SElEct REcEIptS, SUStAInS, And dISmISSAlS 

2011 

Receipts Sustained Dismissed

2012 

Receipts Sustained Dismissed

2013 

Receipts Sustained Dismissed

I-129 H-1B, Specialty Occupation 723 15 585 523 19 985 578 12 858

I-129 L-1, Intracompany Transferee 257 4 83 254 26 317 269 37 508

I-140 EB-1, Extraordinary Ability 206 11 184 203 14 282 179 8 193

I-140 EB-3, Professionals 533 24 651 392 77 1803 423 93 1619

I-212, Request for Admission		

After Deportation or Removal 179 9 193 115 40 161 86 36 88

I-360, Self-Petitioning Spouse

of Abusive U.S. Citizen or Legal

Permanent Resident 574 29 458 524 20 320 339 28 352

I-601, Waiver of Grounds

of Inadmissibility 1347 435 1215 1167 490 1929 997 496 1737

I-918, U Nonimmigrant Status 216 12 190 221 4 183 166 0 119

N-600, Certificate for Citizenship 226 39 168 173 11 131 193 12 105

Source: Information provided by USCIS (Apr. 25, 2014). 

277 Information provided by USCIS (Feb. 7, 2013).
�

278 See Form I-290B, Notice of Appeal or Motion and instructions on USCIS Webpage; http://www.uscis.gov/i-290b (accessed Apr. 10, 2014). Part 3, item 

6 “USCIS Office Where Last Decision Issued” of Form I-290B asks the applicant to enter (if nonelectronic filing) or select from the drop-down (if 

electronic filing) the name of the office that denied or revoked the petition or application.
�

279 Supra note 159.
�

280 USCIS Response to Recommendation 20 (Dec. 19, 2005); http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_20_Administrative_Appeals_USCIS_Response-12-19-05.pdf (accessed Jan. 27, 2014). 

58 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Data Quality and its Impact 

on those Seeking Immigration 

and Other Benefits 

Responsible USCIS Office: 

Enterprise Services Directorate 

Stakeholders reported issues with the USCIS Systematic Alien 

Verification for Entitlements (SAVE) program verifying a 

foreign national’s eligibility with a benefit-granting agency, 

such as a state driver’s license office or a local Social Security 

Administration (SSA) office. SAVE uses data from the U.S. 

Department of State, DHS, DOJ, and other agencies to verify 

an individual’s immigration status, usually at the time the 

individual is applying for a state or local benefit, including 

drivers’ licenses.281 USCIS has taken steps to resolve certain 

quality issues but problems persist. In April 2013, the 

Ombudsman convened a working group, the Data Quality 

Forum, to focus on issues pertaining to DHS data sharing 

and integrity. While communication and new working 

relationships have developed as a result of this forum, data 

quality challenges remain and addressing them will require 

a renewed commitment on the part of participating offices. 

background 

USCISVerification Information Systems (VIS) is the technical 

infrastructure that enables USCIS to operate SAVE and 

E-Verify.282 It is a nationally accessible database of selected 

immigration status information containing in excess of 100 

million records. In 2013,VIS responded to approximately 

25 million E-Verify queries, and approximately 11 million 

SAVE queries.283 The E-Verify and SAVE programs rely 

on multiple data systems to verify an individual’s 

immigration status. 

On September 19, 2012, the DHS Office of the Inspector 

General (OIG) issued a report on the SAVE program. The 

OIG recommended implementation of a process to compile 

and trace SAVE benefit-applicant requests and referrals, 

and a process for SAVE database owners to report to the 

USCISVerification Division whether changes to SAVE 

benefit-applicant records were made.284 USCIS concurred 

with the first recommendation. USCIS responded to the 

second recommendation by stating that the SAVE program 

was not the owner of the records it uses to determine 

immigration status, and that the SAVE program does not 

have the authority to require database owners to report 

corrections to applicants’ records.285 The OIG directed and 

USCIS is working to develop internal procedures to report 

to the SAVE program whether USCIS records have been 

changed.286 Since the SAVE program uses non-USCIS data, 

the Ombudsman offered to help coordinate with other 

DHS components and federal offices to develop a reporting 

system as the OIG suggested. 

In response to the OIG report, USCIS and DHS partners 

have worked to improve the quality of data used to verify 

immigration status with the SAVE program. Specifically, 

the SAVE program has automated certain processing steps 

for select user agencies that eliminate the need for manual 

processing requests. The SAVE program now interfaces with 

USCIS Electronic Information System (ELIS) and CLAIMS 3, 

the central USCIS case management system, as well as 

DOJ systems.287 

Starting in April 2013, the Ombudsman began hosting 

the Data Quality Forum to address data sharing challenges 

between USCIS and other federal agencies. Participants 

include DOJ, SSA, and DHS. Topics have ranged from U.S. 

Customs and Border Protection’s (CBP) main data system, to 

the automation of the Form I-94, Arrival/Departure Record, 

to data stewardship policies and service level agreements. 

The Ombudsman’s 2013 Annual Conference included a 

roundtable discussion on USCIS data quality enhancements, 

user challenges, and access concerns with panelists from the 

USCIS Enterprise Services Directorate, the DHS Office of Civil 

Rights and Civil Liberties, and a state Refugee and Asylee 

services office.288 They shared information on recent USCIS 

systems enhancements and user frustrations and challenges. 

281 USCIS Webpage, “SAVE;” http://www.uscis.gov/save. 

282 DHS Privacy Impact Assessment, “Verification Information System SupportingVerification Programs” (Apr. 1, 2007); http://www.dhs.gov/xlibrary/
�

assets/privacy/privacy_pia_uscis_vis.pdf (accessed Jun. 11, 2014).
�

283 Supra note 224.
�

284 U.S. Department of Homeland Security Office of Inspector General Report, “U.S. Citizenship and Immigration Services Systematic AlienVerification for 

Entitlements Program Issues” (Sept. 19, 2012); http://www.oig.dhs.gov/assets/Mgmt/2012/OIG_12-125_Sep12.pdf.
�

285 Id., p.8.
�

286 Id.
�

287 Supra note 224.
�

288 See DHS Blog Posting, “Ombudsman’s Third Annual Conference:Working Together to Improve Immigration Services” (Oct. 24, 2013); http://www.
�

dhs.gov/blog/2013/10/24/ombudsman%E2%80%99s-third-annual-conference-working-together-improve-immigration-services (accessed Mar. 14,
�

2014). 

Annual Report to Congress – June 2014 59 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Recently, in anticipation of new immigration legislation, 

USCISVerification began system testing high volume use 

of the E-Verify and SAVE programs.289 The SAVE program 

enhanced its monitoring and compliance to ensure agency 

participants use the program to verify the immigration status 

information of benefit applicants in a fair, appropriate and 

lawful manner. 

Ongoing Concerns 

In the last year, USCIS improved its data sharing capabilities 

and quality. VIS quality assurance efforts are also ongoing, 

but issues remain: 

Correcting Data Errors. USCIS interfaces with multiple 

IT systems to compile information into the Central Index 

System (CIS). This system is a repository of electronic data 

that provides its users access to biographical, and current 

and historical status information. CIS has 15 interfaces with 

eight other IT systems. This is one of the many systems 

E-Verify and the SAVE program use to verify immigration 

status for benefits-granting agencies. E-Verify and the SAVE 

program depend on the responsible agency to make the 

correction or addition to the feeder system, but cannot 

force compliance and at times cannot verify corrections. 

An enforceable policy for follow-up and verification of 

corrections resulting from a system’s error report is needed. 

Interagency Coordination. Government agencies and 

employers rely on information from USCIS systems in 

order to administer benefits and entitlement programs, 

and to make hiring and other significant decisions. Careful 

coordination is needed in exchanges between record owners 

and USCIS to ensure the accuracy of data. This requires 

a commitment to invest time and resources to improve 

systems. To date, USCIS has taken steps toward improving 

data quality by, for example, developing internal working 

groups and sponsoring research projects to assess data 

quality. However, USCIS does not control all data it relies on 

to verify immigration status. Active measures are needed to 

ensure data quality practices remain effective and keep pace 

with the rapid development of new information systems 

technologies. 

USCIS relies on accurate data to strengthen and effectively 

administer the immigration system. When data quality falls 

short, customers experience delays in benefits and inaccurate 

decisions. The Ombudsman values USCIS’s contribution to 

the Data Quality Forum, and looks forward to continuing 

to host meetings to improve interagency coordination and 

data quality. 

Problems with Payment of the 

ImmigrantVisa Fee via ELIS 

Responsible USCIS Office: 

Office of Transformation Coordination 

In May 2013, USCIS began requiring that immigrant visa 

recipients pay, via USCIS’s ELIS system, the $165 fee to cover 

the cost of producing their Permanent Resident Cards.290 

Electronic payment of this fee is problematic for a variety of 

reasons: 1) computer access is required in order to make the 

payment, and USCIS has not specified any alternative method 

for payment; 2) the visa recipient must create an ELIS 

account in order to make the payment, with no provision for 

payment by an attorney or other authorized representative; 

3) the need for a credit card or a bank account makes 

payment impossible for some visa applicants; and 4) the 

account registration process, which requires the user to 

answer a series of questions, is available only in English. 

background 

During the 2014 reporting period, USCIS continued its 

“Transformation” efforts, the fundamental reengineering 

of USCIS’s business processes from paper-based 

adjudications to an electronic case review and management 

environment.291 On May 22, 2012, USCIS launched 

the foundational release of the new system, ELIS, which 

integrates with other DHS systems such as U.S. Immigration 

and Customs Enforcement’s Student and Exchange Visitor 

Information System and CBP’s Arrival-Departure Information 

system.292 This release included online account-based filing 

of Forms I-526, Immigrant Petition by Alien Entrepreneur, and 

I-539, Application to Extend/Change Nonimmigrant Status.

293 

289 Supra note 220. 

290 USCIS Webpage “USCIS Immigrant Fee” (Aug. 21, 2013); http://www.uscis.gov/forms/uscis-immigrant-fee (accessed Apr. 29, 2014). USCIS offered 

its email for feedback at usics-elis-feedback@uscis.dhs.gov.
�

291 See generally USCIS Webpage, “USCIS ELIS” (Apr. 16, 2014); http://www.uscis.gov/uscis-elis (accessed Apr. 28, 2014).
�

292 Information provided by USCIS (Apr. 28, 2014).
�

293 See USCIS Webpage, “USCIS ELIS, Forms and Fees Available in USCIS ELIS” (Apr. 16, 2014); http://www.uscis.gov/uscis-elis (accessed Apr. 29, 2014).
�

See section of this Report on “Problems with Payment of the ImmigrantVisa Fee via ELIS.” 

60 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

In anticipation of its second release, USCIS held public 

engagements on the immigrant fee payment process via ELIS 

in May and August 2013.294 Callers expressed concerns that 

some visa applicants have no computer access; and others, 

who can access a computer, do not have the computerfamiliarity necessary to make an online payment. Callers 

also raised concerns about frequent error messages from 

ELIS; a non-intuitive registration process for the accounts; 

the barriers presented to certain visa applicants by the 

English-only interface; and the lack of technical support 

available to users. One attorney on the call described the 

new process as an “outrageous problem.” 

Since the USCIS immigrant fee payment process was added 

to ELIS, almost 500,000 ELIS accounts have been established 

by new immigrants.295 According to USCIS, approximately 

15 percent of new immigrants using ELIS pay after they 

enter the United States.296 

The ELIS Customer Contact Center responded to 18,007 

email inquiries from 42 countries since October 2013. 

Links are available on the ELIS landing page where customers 

create and log into accounts, and on the ELIS Help and 

Customer Support page.297 The USCIS call center has 14 

ELIS technical support agents to address technical inquiries. 

Despite not accepting overseas calls, many customers abroad 

are able to contact the ELIS technical support agents with the 

use of online communications for voice calling. Call center 

technical support agents have answered 65,871 telephonic 

inquiries since August 2013.298 

Ongoing Concerns 

Since June 2013, the Ombudsman has been receiving 

stakeholder reports that immigrant visa recipients are 

having difficulty using the new ELIS fee payment process. 

Of greatest concern are reports from organizations that 

represent low-income immigrant visa applicants who are 

not technologically proficient and do not typically have 

computer access. In addition to lacking access and knowhow, these immigrants may not have bank accounts or 

credit/debit cards. Since ELIS does not permit attorneys or 

other representatives to pay the immigrant fee on behalf of 

their clients, these visa recipients face significant barriers to 

completing the immigration process. Stakeholders reported 

that individuals with valid immigrant visa packets were 

remaining overseas after consular interviews because they 

do not know how to use the ELIS system and feared coming 

to the United States without payment of the fee. 

In August 2013, USCIS issued new instructions, F4 Customer 

Guide – General Information: How Do I Pay the USCIS 

Immigrant Fee, indicating if an individual is unable to pay 

the fee while abroad, the individual may travel to the United 

States, without penalty, and make the payment following 

admission.299 However, these instructions are embedded in 

a three-page brochure, and they provide little information 

on how that payment should be made, and no information 

specifying what a customer should do if the customer does 

not receive a Request for Payment from USCIS. The customer 

guide is available in Chinese (Mandarin), French, Hindi, 

Korean, Portuguese, Spanish,Tagalog, Urdu andVietnamese, 

as well as English. USCIS acknowledged that the translations 

contain inaccurate language stating that the fee must be paid 

abroad, and there is no plan to revise this literature, which is 

distributed after the consular appointment. 

294 See USCIS Webpage, “USCIS Immigrant Fee Transition to USCIS ELIS (Electronic Immigration System)” (May 10, 2013); http://www.uscis.gov/outreach/notes-previous-engagements/uscis-immigrant-fee-transition-uscis-elis-electronic-immigration-system (accessed Apr. 28, 2014); USCIS Customer 

Service and Public Engagement Directorate, “Webinar on Paying the USCIS Immigrant Fee” (Aug. 16, 2013); http://www.uscis.gov/sites/default/files/
�

USCIS/Outreach/Upcoming%20National%20Engagements/Upcoming%20National%20Engagement%20Pages/2013%20Events/August%202013/USCISImmigrantFee-webinar-invite.pdf (accessed May 14, 2014).
�

295 Supra note 136.
�

296 Information provided by USCIS (May 12, 2014). Approximately 50,000 accounts have been created for individuals filing Form I-539.
�

297 USCIS Webpage, “USCIS Electronic Immigration System (USCIS ELIS) Log In;” https://elis.uscis.dhs.gov/cislogin/CISControllerAction.do?TAM_
�

OP=login&ERROR_CODE=0x00000000&URL=%2F&AUTHNLEVEL=&OLDSESSION (accessed May 9, 2014); “USCIS ELIS Help and Customer Support”
�

(Jan. 27, 2014); http://www.uscis.gov/uscis-elis/uscis-elis-help-and-customer-support (accessed May 9, 2014).
�

298 Information provided by USCIS (May 7, 2014).
�

299 USCIS Webpage, “F4 Customer Guide – General Information: How Do I Pay the USCIS Immigrant Fee” M-1113 (Aug. 2013); http://www.uscis.gov/
�

sites/default/files/USCIS/Resources/How%20Do%20I%20Guides/F4en.pdf (accessed Apr. 28, 2014).
�

Annual Report to Congress – June 2014 61 
The Ombudsman suggested that USCIS take the following 

ameliorative actions: 

• Change ELIS to allow an attorney or accredited 

representative with a Form G-28, on file to make the fee 

payment on the client’s behalf. In a meeting with USCIS 

in April 2014,Transformation leaders stated USCIS is 

consulting with counsel and privacy authorities to develop 

a payment option for representatives of the visa recipient. 

USCIS likely will schedule a public engagement session 

when such changes are unveiled. 

• Revise the foreign language instructions indicating that 

it is compulsory to pay the fee from abroad, and revise the 

instructions in English on the USCIS website to simply and 

clearly state that the applicant has the option of paying 

from overseas or in the United States, wherever the 

individual can access ELIS. 

• Translate ELIS questions into Spanish and other languages. 

Conclusion 

USCIS continues to conduct robust public engagement. 

However, there are ongoing concerns with the AAO’s 

authority and independence, the fee waiver process, and 

the methodology used to calculate processing times. The 

Ombudsman will continue to monitor USCIS’s customer 

service efforts and looks forward to future developments. 

62 Citizenship and Immigration Services Ombudsman 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Recommendations Updates 

Employment Eligibility 

for Derivatives of Conrad 

State 30 Program Physicians 

Responsible USCIS Offices: 

Service Center Operations Directorate, Office of Policy 

and Strategy, and Office of the Chief Counsel 

On March 24, 2014, the Ombudsman published 

recommendations titled Employment Eligibility for 

Derivatives of Conrad State 30 Program Physicians.300 

background 

USCIS interprets relevant statutory and regulatory provisions 

as permitting J-2 nonimmigrant dependents of a J-1 

(Exchange Visitor) medical doctor accepted into the Conrad 

State 30 program,301 which provides a waiver of the twoyear home-country physical presence requirement, to 

change only to H-4 nonimmigrant status. USCIS will 

not allow change of status to another, employmentauthorized nonimmigrant status, even where the dependent 

independently qualifies for such status.302 This policy 

appears to be at odds with the legislative intent, may have 

a chilling effect on Conrad State 30 applications, and may 

place an undue financial burden on international medical 

graduates and their families. 

Recommendations 

Accordingly, the Ombudsman recommended that USCIS: 

1) Publish new regulations that permit independently 

eligible J-2 dependents of J-1 physicians approved 

for Conrad State 30 program waivers to change to other 

employment-authorized nonimmigrant classifications; or 

2) 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. 

Improving the 

Quality and Consistency 

of Notices to Appear 

Responsible USCIS Offices: 

Field Operations and Service Center Operations Directorates, 

Office of Policy and Strategy, and Office of the Chief Counsel 

On June 11, 2014, the Ombudsman published 

recommendations titled Improving the Quality and 

Consistency of Notices to Appear.303 

background 

Under the Immigration and Nationality Act, three agencies 

within DHS may initiate a removal proceeding by preparing 

and serving Form I-862, Notice to Appear (NTA) on a 

respondent and the Immigration Court.304 These agencies 

include USCIS, U.S. Immigration and Customs Enforcement 

(ICE) and U.S. Customs and Border Protection.305 While 

statutory and regulatory provisions outline the initiation, 

nature, and potential outcome of removal proceedings, 

agency policy memoranda makes clear enforcement 

priorities, procedures for drafting and reviewing NTAs, and 

300 Ombudsman Recommendation, “Employment Eligibility for Derivatives of Conrad State 30 Program Physicians” (Mar. 24, 2014); http://www.dhs. 

gov/publication/cisomb-recommendation-work-authorization-j2-physician-dependents (accessed Jun.17, 2014).
�

301 Immigration and Nationality Act (INA) § 214(l). On September 28, 2012, through enactment of Pub. L. No. 112-176, the Conrad State 30 program 

was extended until September 30, 2015.
�

302 Information provided by USCIS (Sept. 17, 2013). Prior to 2011, USCIS regularly approved requests for change of status for J-2s to employmentauthorized nonimmigrant classifications, such as H-1B Specialty Occupation Worker, after the principal J-1 obtained a Conrad State 30 waiver.
�

According to USCIS, subsequent to a revision of Form I-129, Petition for a Nonimmigrant Worker, in 2010, the agency began collecting 

information pertaining to J-2s in order to determine whether the principal was subject to the two-year home-residency requirement. It then began 

denying change of status applications filed by these dependents to change to classifications other than H-4. USCIS maintains that its policy has not 

changed in this area. Rather, the agency claims that denial of these applications for change of status is due to the collection of new information by USCIS 

via the revised Form I-129 (i.e., USCIS is now able to easily identify dependents who are subject to the two-year home-residency requirement).
�

303 Ombudsman Recommendation, “Improving the Quality and Consistency in Notices to Appear (NTAs)” (Jun. 11, 2014); http://www.dhs.gov/publication/cisomb-nta-recommendation (accessed Jun.17, 2014).
�

304 INA § 239(a); 8 U.S.C. § 1229(a) (2006); and 8 C.F.R. § 1003.14(a).
�

305 This recommendation does not address the issuance of Notices to Appear (NTAs) by U.S. Customs and Border Protection (CBP) agents. It does discuss 

U.S. Immigration and Customs Enforcement’s (ICE) priorities and legal review related to NTAs. 

Annual Report to Congress – June 2014 63 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the proper exercise of prosecutorial discretion. In November 

2011, USCIS released revised guidance on issuance of NTAs 

and referral of certain cases to ICE.306 The guidance focused 

on DHS-established enforcement priorities and is an essential 

mechanism to streamline the NTA issuance process to 

promote efficiency while enhancing national security and 

public safety. Effective communication and collaboration to 

actualize DHS’s priorities is a challenging but critical goal for 

NTA issuance. 

In USCIS, a wide range of officials in asylum, field and 

service center locations may draft and issue NTAs.307 There 

is no requirement that these NTAs be reviewed and approved 

by attorneys in the USCIS Office of the Chief Counsel (OCC) 

or in any other DHS legal program. OCC attorneys are not 

typically involved in designing or delivering training on 

NTA issuance.308 Instead, USCIS offices and directorates 

have developed their own protocols and instructional 

materials, some of which have not been updated in years.309 

Stakeholder and case assistance feedback brought to the 

attention of the Ombudsman indicates the lack of attorney 

involvement in USCIS-generated NTAs has contributed to the 

issuance of unnecessary and inaccurate charging documents, 

creating additional work for ICE and hardship to individuals 

and families. The ensuing inefficiencies also undermine the 

intent of the 2011 policy guidance – increased efficiency 

and coordination. 

USCIS does not track the number of NTAs that are returned 

as undeliverable, rejected by ICE, or terminated by the 

Executive Office for Immigration Review (EOIR), making it 

difficult to evaluate the agency’s overall performance in this 

area.310 However, the Ombudsman has identified a need for 

greater transparency and coordination within USCIS, and 

between USCIS, ICE and EOIR. The recommendations below 

seek to ensure that those placed into removal receive a full 

and fair hearing, including proper notice of all charges and 

a meaningful opportunity to respond. 

Recommendations 

To improve the quality and consistency of NTAs, and to 

ensure they are in compliance with DHS and USCIS policies, 

the Ombudsman recommends that USCIS: 

1) Provide additional guidance for NTA issuance with input 

from ICE and EOIR; 

2) Require USCIS attorneys to review NTAs prior to their 

issuance and provide comprehensive legal training; and 

3) Create a working group with representation from ICE 

and EOIR to improve tracking, information-sharing, and 

coordination of NTA issuance. 

306 USCIS Policy Memorandum, “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible 

and Removable Aliens” (Nov. 7, 2011); http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20 

%28Approved%20as%20final%2011-7-11%29.pdf (accessed Apr. 29, 2014). 

307 Information provided by USCIS (Mar. 22, 2013). 

308 Id. 

309 Id. USCIS Office of the Chief Council does not have any separate guidance related to legal sufficiency review of NTAs by its headquarters or 

field attorneys.
�

310 Id. USCIS informed the Ombudsman that the agency does not generally maintain a system to track the number of NTAs returned to USCIS by ICE,
�

CBP or the Executive Office for Immigration Review due to erroneous information or faulty drafting. The agency also does not track how many of these 

returned NTAs were mailed again or delivered in person to the same respondent. According to USCIS, the agency “does not track the number of NTAs 

returned as undeliverable on a national level.” Information provided by USCIS (Oct. 1, 2013).
�

64 Citizenship and Immigration Services Ombudsman 
 

 

 

Appendix 1: 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. 

Annual Report to Congress – June 2014 65 
(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 such administrative action as may appropriate to resolve 

problems encountered by individuals and employers. 

(e) PERSONNEL ACTIONS— 

(1) IN GENERAL— The Ombudsman shall have the responsibility and authority— 

 (A) To appoint local ombudsmen and make available at least 1 such ombudsman for each State; and 

 (B) To evaluate and take personnel actions (including dismissal) with respect to any employee of any local office of 

 the Ombudsman. 

(2) CONSULTATION—The Ombudsman may consult with the appropriate supervisory personnel of the Bureau of
� 

Citizenship and Immigration Services in carrying out the Ombudsman’s responsibilities under this subsection.
�

(f) RESPONSIBILITIES OF BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES—The Director of the Bureau of 

Citizenship and Immigration Services shall establish procedures requiring a formal response to all recommendations 

submitted to such director by the Ombudsman within 3 months after submission to such director. 

(g) OPERATION OF LOCAL OFFICES-

(1) IN GENERAL—Each local ombudsman— 

 (A) shall report to the Ombudsman or the delegate thereof; 

 (B) may consult with the appropriate supervisory personnel of the Bureau of Citizenship and Immigration Services 

 regarding the daily operation of the local office of such ombudsman; 

 (C) shall, at the initial meeting with any individual or employer seeking the assistance of such local office, notify such 

 individual or employer that the local offices of the Ombudsman operate independently of any other component of 

 the Department and report directly to Congress through the Ombudsman; and 

 (D) at the local ombudsman’s discretion, may determine not to disclose to the Bureau of Citizenship and Immigration 

 Services contact with, or information provided by, such individual or employer. 

(2) MAINTENANCE OF INDEPENDENT COMMUNICATIONS—Each local office of the Ombudsman shall maintain a phone, 

facsimile, and other means of electronic communication access, and a post office address, that is separate from those 

maintained by the Bureau of Citizenship and Immigration Services, or any component of the Bureau of Citizenship and 

Immigration Services. 

66 Citizenship and Immigration Services Ombudsman 
 

 

Appendix 2: U.S. Department of 

Homeland Security Organizational Chart 

SECRETARY 

——————————

DEPUTY SECRETARY 

ChiEF oF STAFF 

ExECUTivE SECRETARiAT 

MiLiTARY ADviSoR 

MANAGEMENT 

DiRECToRATE 

SCiENCE & 

TEChNoLoGY 

DiRECToRATE 

NATioNAL 

PRoTECTioN 

& PRoGRAMS 

DiRECToRATE 

PoLiCY LEGiSLATivE 

AFFAiRS 

GENERAL 

CoUNSEL 

PUBLiC 

AFFAiRS 

iNSPECToR

GENERAL 

ChiEF 

FiNANCiAL 

oFFiCER 

hEALTh 

AFFAiRS 

iNTER - 

GovERNMENTAL 

AFFAiRS 

iNTELLiGENCE 

& ANALYSiS 

oPERATioNS 

CooRDiNATioN 

& PLANNiNG 

CiTiZENShiP 

& iMMiGRATioN 

SERviCES 

oMBUDSMAN 

ChiEF 

PRivACY 

oFFiCER 

CiviL RiGhTS & 

CiviL LiBERTiES 

DoMESTiC 

NUCLEAR 

DETECTioN 

oFFiCE 

FEDERAL LAW 

ENFoRCEMENT 

TRAiNiNG 

CENTER 

U.S. CUSToMS 

& BoRDER 

PRoTECTioN 

U.S. CiTiZENShiP 

& iMMiGRATioN 

SERviCES 

U.S. CoAST 

GUARD 

FEDERAL 

EMERGENCY 

MANAGEMENT 

AGENCY 

U.S. 

iMMiGRATioN 

& CUSToMS 

ENFoRCEMENT 

U.S. SECRET 

SERviCE 

TRANSPoRTATioN 

SECURiTY 

ADMiNiSTRATioN 

Annual Report to Congress – June 2014 67 
The Ombudsman’s Office provides case assistance to address the following procedural matters:

• Typographic errors in immigration documents

• Cases that are 60 days past normal processing times

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix 3: Ombudsman Scope 

of Case Assistance 

Office of the Citizenship and Immigration Services 

Ombudsman 

U.S. Department of Homeland Security 

Requests for Case Assistance: Scope of Assistance Provided to Individuals 

June 2013 

The Office of the Citizenship and Immigration Services Ombudsman (Ombudsman’s Office), 

established by the Homeland Security Act of 2002, assists individuals and employers in resolving 

case problems with U.S. Citizenship and Immigration Services (USCIS). The Ombudsman’s Office 

also reviews USCIS policies and procedures, and recommends changes to mitigate identified 

problems in USCIS’s administrative practices. 

Pursuant to this statutory authority, the Ombudsman’s Office reviews individual cases to provide 

assistance by examining facts, reviewing relevant data systems, and analyzing applicable laws, 

regulations, policies and procedures. After assessing each case in this manner, the Ombudsman’s 

Office may contact USCIS service centers, field offices, and other facilities to request that USCIS 

engage in remedial actions. If the Ombudsman’s Office is unable to assist, it will inform the 

individual or employer that the matter is outside the scope of the Ombudsman’s authority or 

otherwise does not merit further action. 

The Ombudsman’s Office is not an appellate body and cannot question USCIS decisions that were 

made in accordance with applicable procedures and law. Additionally, the Ombudsman’s Office 

does not have the authority to command USCIS to reopen a case, or to reverse any decisions the 

agency may have made. 

The Ombudsman’s Office is an office of last resort. Assistance should only be sought when an 

individual or employer has attempted to obtain redress through all other available means. Prior to 

requesting the Ombudsman’s Office assistance in a particular case, individuals and employers 

should make reasonable efforts to resolve any issues directly with USCIS, using mechanisms such as 

the e-Service Request, National Customer Service Center, and InfoPass. 

The jurisdiction of the Ombudsman’s Office is limited by statute to problems involving USCIS. The 

Ombudsman does not have the authority to assist with problems that individuals or employers 

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

Enforcement (ICE), the U.S. Department of State (DOS), the Executive Office for Immigration 

Review (EOIR), or the U.S. Department of Labor (DOL). However, it may be possible for the 

Ombudsman’s Office to assist if the application involves both USCIS and another DHS component 

or government agency. 

68 Citizenship and Immigration Services Ombudsman 
Page 2

Enforcement (ICE), the U.S. Department of State (DOS), the Executive Office for Immigration 

Review (EOIR), or the U.S. Department of Labor (DOL). However, it may be possible for the

Ombudsman’s Office to assist if the application involves both USCIS and another DHS component

or government agency.

www.dhs.gov/cisombudsman

 

 

 

The Ombudsman’s Office provides case assistance to address the following procedural matters: 

•	 Typographic errors in immigration documents 

•	 Cases that are 60 days past normal processing times 

•	 USCIS’s failure to schedule biometrics appointments, interviews, naturalization oath 

ceremonies, or other appointments
	

•	 Change of address and mailing issues, including non-delivery of notices of action and/or 

completed immigration documents (e.g., Employment Authorization Cards, Permanent 

Resident Cards, etc.), except where USCIS properly mailed the notice or document to the 

individual’s address on file and it was not returned 

•	 Cases where the beneficiary may “age-out” of eligibility for the requested immigration 

benefit 

•	 Refunds in cases of clear USCIS error 

•	 Lost files and/or file transfer problems 

The Ombudsman’s Office provides case assistance to address the following substantive matters: 

•	 Clear errors of fact, or gross and obvious misapplication of the relevant law by USCIS in 

Requests for Evidence, Notices of Intent to Deny, and denials 

•	 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 

•	 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.) 

Annual Report to Congress – June 2014	� 69 
Appendix 4: Initial Benefit 

Adjudication Data for Commonly 

Appealed Form Types 

 

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70 Citizenship and Immigration Services Ombudsman
 
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Annual Report to Congress – June 2014 71 

 

 

 

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