Annual Report 2013 

Citizenship and Immigration Services 

Ombudsman

June 27, 2013 

 

Annual Report 2013
� Citizenship and Immigration Services 

Ombudsman

June 27, 2013 

Citizenship and Immigration Services Ombudsman i 
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ii Annual Report to Congress – June 2013 
             

       

     

     

       

                               

                       

                 

       

Office of the Citizenship and Immigration Services

Ombudsman

U.S. Department of Homeland Security

Mail Stop 0180 

Washington, DC 20528­0180 

June 27, 2013 

The Honorable Patrick Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

The Honorable Chuck Grassley 

Ranking Member 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

The Honorable Bob Goodlatte 

Chairman 

Committee on the Judiciary 

United States House of Representatives 

Washington, DC 20515 

The Honorable John Conyers, Jr. 

Ranking Member 

Committee on the Judiciary 

United States House of Representatives 

Washington, DC 20515 

Dear Chairmen and Ranking Members: 

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

452(c) of the Homeland Security Act of 2002, its 2013 Annual Report. 

I am available to provide additional information upon request. 

Sincerely, 

Maria M. Odom 

Citizenship and Immigration Services Ombudsman 

www.dhs.gov/cisombudsman

Citizenship and Immigration Services Ombudsman iii 
A Message from the Ombudsman
 

It is an honor to present to you the Citizenship and Immigration Services Ombudsman’s 

2013 Annual Report. This Report describes the work of the Ombudsman, including the 

key issues and areas of study we have addressed over the year. 

As we finalize this Annual Report, we are closely following bipartisan comprehensive 

immigration reform — the first such legislation that Congress has considered in many 

years. If enacted, many individuals currently residing in the United States or waiting in 

long visa backlogs abroad will be able to submit applications for immigration benefits 

to U.S. Citizenship and Immigration Services (USCIS). The challenge for USCIS will be 

significant, and the Ombudsman’s Office stands ready to support implementation by 

assisting individuals and employers who encounter problems during that process. 

During this past year, USCIS implemented the Deferred Action for Childhood Arrivals (DACA) program. DACA illustrates 

the agency’s ability to develop quickly and successfully a new application and an adjudicatory process accompanied by widereaching outreach and education. The agency is to be commended for its effective operational response, public engagement, 

and interagency work to achieve a common understanding of DACA-related policy and procedures. This type 

of rapid and comprehensive response will be essential to successful implementation of immigration reform. 

At this moment in our nation’s immigration history, we recognize the 10-year anniversary of the Office of the Citizenship 

and Immigration Services Ombudsman. We measure our success, in great part, by the trust placed in us by thousands of 

individuals and employers who have sought to resolve long delayed or complex cases pending before USCIS. Whether 

assisting a member of the military seeking relief for a spouse; an immigrant entrepreneur applying to start a new business 

in this country; a refugee awaiting processing in a dangerous overseas camp; or a long-term permanent resident applying 

to naturalize, the Ombudsman’s Office plays a vital role helping to ensure our government delivers immigration services 

commensurate with our heritage as a nation of immigrants. 

iv Annual Report to Congress – June 2013 
 

 

 

 

 

Good government is grounded in a steadfast commitment to efficiency, transparency, and accountability. But sometimes, 

despite dedicated efforts, government fails to deliver its best, leaving the public to suffer hardship that requires the 

involvement of a neutral third party. As an office of last resort, the Citizenship and Immigration Services Ombudsman plays 

that role, working arduously to ensure that individuals applying for an immigration benefit can experience government at 

its best. We are problem solvers, focused on assisting one case at a time and delivering policy recommendations throughout 

the year to improve efficiency and fairness in the administration of immigration benefits. Our success is directly related to 

working as an ally with our partner agency, USCIS, to deliver high-quality service. 

It is through meaningful collaboration with Director Alejandro Mayorkas and his team that we have been able to make a 

difference for the individuals we serve. I thank Director Mayorkas for his leadership and continued positive engagement 

with our office. My appreciation also extends to the USCIS officers across the country for their expertise and commitment to 

delivering exemplary immigration services. I would also like to thank Secretary Janet Napolitano and Congress for supporting 

our work. Finally, I would like to thank my team for their quiet, yet incredibly effective, assistance to the individuals and 

employers we serve. I often say, “If you want to experience outstanding customer service in government, come visit the 

Ombudsman’s Office.” We welcome you to engage with us and learn more about our work. 

Many of us respond to the call to public service because we believe that in every branch of government we can contribute 

meaningfully to our great democracy. Throughout my career, I have had the privilege to touch every sector in the field 

of immigration: charitable, government, and the private practice of law. Through those experiences I have learned that 

protecting the integrity and improving the efficiency and quality of the immigration system serves both country and 

immigrant alike. I embrace the honor and immense responsibility to serve as the new Citizenship and Immigration 

Services Ombudsman. 

Sincerely, 

Maria M. Odom 

Citizenship and Immigration Services Ombudsman
 

Citizenship and Immigration Services Ombudsman v 
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vi Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

 

Executive Summary 


Executive Summary 

The Office of the Citizenship and Immigration Services 

Ombudsman’s 2013 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 humanitarian, 

family, and employment areas, and in customer service 

 and Transformation. 

Ombudsman’s Office Overview 

The Ombudsman’s Office, established by the Homeland 

Security Act of 2002, helps individuals and employers 

resolve problems with USCIS. Policy and casework is carried 

out by a group of professionals with wide-ranging skills 

and areas of subject matter expertise. From April 1, 2012, 

to March 31, 2013, the Ombudsman received 4,531 

requests for assistance. In 74 percent of cases submitted to 

the Ombudsman, the individuals and employers previously 

visited USCIS My Case Status online, 66 percent contacted 

the USCIS National Customer Service Center telephone line, 

and 30 percent attended InfoPass appointments at a local 

field office. Overall, the requests were divided equally among 

humanitarian, family and employment-based matters. 

This year, the Ombudsman visited communities and 

stakeholders in every region of the United States. After 

extensive research and outreach, the Ombudsman issued 

four formal recommendations: 

• Improving the Process for Removal of Conditions on 

Residence for Spouses and Children (February 28, 2013); 

• Improving the Adjudication of Applications and Petitions 

under Section 204(l) of the Immigration and Nationality 

Act (INA) (November 26, 2012); 

• Ensuring a Fair and Effective Asylum Process for 

Unaccompanied Children (September 20, 2012); and 

• Recommendations Regarding USCIS’s Role in the Petition 

Information Management Service (PIMS) (May 16, 2012). 

Key Developments and 

Areas of Study 

Humanitarian 

Victims of Abuse,Trafficking and Other Crimes. The U.S. 

Department of Homeland Security and USCIS sponsor key 

initiatives to protect victims of human trafficking, domestic 

violence, and other crimes. In December 2012, USCIS 

issued policy guidance on employment authorization for 

certain Violence Against Women Act (VAWA) self-petitioners 

and their derivatives, as well as U visa beneficiaries. While 

stakeholders welcomed this instruction, ongoing concerns 

remain regarding employment authorization for derivative 

applicants and limitations on the ability of nonimmigrant 

victims to obtain work authorization. 

Unaccompanied Children. The INA and William 

Wilberforce Trafficking Victims Protection Reauthorization 

Act of 2008 (TVPRA) provide procedural and substantive 

protection for unaccompanied alien children (UACs). 

Following extensive study, the Ombudsman issued, “Ensuring 

a Fair and Effective Asylum Process for Unaccompanied 

Children.” USCIS subsequently agreed to accept UAC 

determinations made for custody purposes by U.S. Customs 

and Border Protection and Immigration and Customs 

Enforcement. This decision will afford a consistent process 

to all minors apprehended and placed into custody with the 

Department of Health and Human Services. 

Special Immigrant Juveniles. Abused, abandoned or 

neglected children without immigration status may obtain 

permission to remain lawfully in the United States. From 

2010 to 2011, the Ombudsman received numerous requests 

for assistance related to Special Immigrant Juvenile (SIJ) 

cases. Persistent problems include: protracted processing 

times, inadequate interview techniques and adjudications, 

and burdensome or intrusive Requests for Evidence (RFEs) 

relating to juvenile dependency orders. On April 15, 2011, 

the Ombudsman published a formal recommendation to 

address these issues. While USCIS adopted some proposed 

reforms, stakeholders continue to encounter SIJ-related 

difficulties. The Ombudsman will continue to work 

with USCIS Field Operations staff to resolve remaining 

stakeholder concerns. 

Citizenship and Immigration Services Ombudsman vii 
Discretionary Relief and Deferred Action for Childhood 

Arrivals (DACA). Deferred action is an exercise of 

agency discretion to allow an individual to remain in the 

United States without fear of removal. Since 2007, the 

Ombudsman has issued two formal recommendations 

identifying ways USCIS can improve transparency and 

consistency for individuals requesting deferred action. This 

year, USCIS adopted many of these changes in the context 

of the DACA program. The level of internal and external 

information-sharing, and institutional willingness to create 

and monitor the processing of DACA requests, are examples 

of best practices for processing deferred action and other 

discretionary applications. 

Reinstatement of Automatically Revoked Petitions. 

USCIS may reinstate certain family-based petitions that were 

automatically revoked following the death of a petitioner or 

beneficiary. Such requests for relief must be submitted by 

surviving immediate relatives. Stakeholders reported lengthy 

delays in the adjudication of humanitarian reinstatement 

requests and the lack of a standard process for submitting 

or evaluating those requests. In practice, humanitarian 

reinstatement requests can take months if not years to 

complete, and are frequently denied. The Ombudsman 

will continue to monitor agency action in this area. 

Family and Children 

Applications and Petitions for Surviving Relatives. 

On October 28, 2009, Congress enacted legislation to 

protect an expanded list of beneficiaries in the family 

and employment-based preference categories following 

the death of a qualifying relative. Fourteen months later, 

USCIS issued a policy memorandum explaining how this 

new law – INA section 204(l) – should be applied. The 

guidance deems previously approved petitions filed on 

behalf of covered beneficiaries automatically revoked and 

subject to reinstatement. After evaluating case assistance 

requests and performing research, the Ombudsman issued, 

“Improving the Adjudication of Applications and Petitions 

under Section 204(l) of the Immigration and Nationality Act.” 

This recommendation urges USCIS to conduct notice and 

comment rulemaking to create or designate a standard form, 

establish a receipt protocol, and stop regarding survivor 

benefits requests as a form of discretionary reinstatement. 

The Ombudsman is currently evaluating USCIS’s response to 

this recommendation, which was received on June 3, 2013. 

Petitions to Remove Conditions on Residence. On 

February 28, 2013, following almost two years of outreach 

to concerned stakeholders, the Ombudsman published, 

“Improving the Process for Removal of Conditions on Residence 

for Spouses and Children.” Key problems identified in this 

recommendation include: ineffective notice and barriers to 

securing information; inefficient processes and inconsistent 

adjudications; a lack of professionalism, sensitivity and 

awareness of legal requirements, especially concerning 

waivers, by some USCIS adjudicators; and inadequate 

electronic systems to support the processing of Form I-751 

petitions. To address these difficulties, the Ombudsman 

called upon USCIS to improve processing protocols, update 

and consolidate guidance materials and systems, and 

conduct comprehensive training. USCIS’s response to the 

recommendation was due May 28, 2013, but has not yet 

been received. 

Provisional and Other Waivers of Inadmissibility. 

During this reporting period, USCIS began to accept, 

through the Phoenix Lockbox, waivers of inadmissibility 

filed by applicants overseas, and shifted the adjudication of 

such requests to the Nebraska Service Center. On January 9, 

2012, USCIS announced its plan to adjudicate provisional 

waivers of unlawful presence for certain immediate 

relatives living in the United States. On March 4, 2013, 

after publishing proposed and final regulations, the agency 

began implementing this initiative. Centralized waiver 

filings and adjudication in the United States, along with 

the Provisional Unlawful Presence Waiver Process, promise 

to improve consistency and minimize delays for thousands 

of individuals and their families. Many have urged USCIS 

to extend provisional waiver coverage to family preference 

categories. 

Employment 

Requests for Evidence. Individuals and employers 

continued to raise concerns regarding what they consider 

inappropriate or unduly burdensome RFEs. This reporting 

period, USCIS reviewed and posted for public comment 

RFE templates for several nonimmigrant employmentbased categories, excluding H-1B Specialty Occupations 

and L-1B Intracompany Transferees with Specialized 

Knowledge. While the templates offer a valuable mechanism 

to standardize and improve employment-based case 

processing, persistent issues remain. These include USCIS 

not recognizing various modern business practices and 

managerial decisions. 

The agency continues to utilize the Validation Instrument for 

Business Enterprises (VIBE), which aims to reduce the need 

for companies and organizations to submit identical paper 

documentation with each petition to establish their current 

level of business operations. Some stakeholders find that, 

contrary to VIBE’s express purpose, they continue to have to 

submit paper documentation with the initial filing and to 

receive RFEs. 

viii Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

In the context of its Entrepreneurs in Residence initiative, 

which enlists private sector experts to inform immigration 

policies and procedures, USCIS conducted training and 

modified RFE templates for certain nonimmigrant visa 

categories to incorporate new sources of evidence. Both the 

California and Vermont Service Centers (CSC and VSC) have 

implemented periodic quality assurance review of RFEs and 

other adjudicative decisions. 

H-1B Special Occupation and L-1 Intracompany 

Transferees. In earlier Reports, the Ombudsman described 

problems related to H-1B Special Occupation and L-1 

Intracompany Transferee categories. Stakeholders focused 

on USCIS policies that appear to subject small and start-up 

companies to inordinate scrutiny. These same concerns were 

shared with the Ombudsman this year. For example, some 

denials in these categories state that the petitioner has not 

demonstrated that the company is sufficiently developed 

to require the presence of an executive or manager. Such 

denials may overlook regulations that permit “new office” 

situations for a limited period of one-year to allow the 

business to become operational. 

EB-5 Immigrant Investor Program. From FY 2010 to 

2012, USCIS received nearly 300% more filings in the 

fifth employment-based (EB-5) preference category from 

immigrants seeking to invest capital and create jobs for U.S. 

workers. This year the Ombudsman received 441 requests 

for EB-5 case assistance, representing approximately 10 

percent of the office’s workload. The vast majority of these 

inquiries came from investors and regional center applicants 

whose cases had been pending beyond normal processing 

times. Other difficulties included a perceived lack of 

responsiveness by USCIS, the issuance of duplicative RFEs, 

and needed guidance regarding processing protocols 

and requirements. 

On December 3, 2012, USCIS announced publicly the 

transfer of its EB-5 adjudications unit from the CSC to 

Washington, D.C. by mid-2013. Approximately two 

weeks later, on December 20, 2012, USCIS issued a policy 

memorandum addressing tenant occupancy methodologies 

and attribution of tenant jobs to EB-5 enterprises for job 

creation purposes. On February 14, 2013, USCIS posted 

a policy memorandum for public comment that appears 

to reverse the agency’s earlier position as to the effect of 

a “material change” to a business plan. Just prior to the 

publication of this Report, on May 30, 2013, USCIS issued 

a detailed “EB-5 Adjudications Policy.” This memorandum 

emphasizes that preponderance of the evidence is the 

standard of proof in EB-5 adjudications, and addresses 

many longstanding stakeholder concerns, including when 

deference will be afforded to prior adjudications and the 

need for flexibility to accommodate business realities. The 

Ombudsman will monitor these key efforts by USCIS to 

address systemic issues affecting the EB-5 program. 

Petition Information Management System (PIMS). 

On May 16, 2012, the Ombudsman issued a 

recommendation to improve the transfer of employmentbased immigration petition information by USCIS to 

the Department of State (DOS). When a nonimmigrant 

petitioner (or his/her legal representative) fails to submit 

the required duplicate copy of the Form I-129, Petition for 

a Nonimmigrant Worker, package to USCIS, the agency does 

not forward evidence of action on the petition to the DOS 

Kentucky Consular Center. This causes processing delays, 

economic hardship, and other problems for individuals 

and employers. The agency declined to implement two 

of the three actions recommended by the Ombudsman, 

noting that in the future it plans to provide all petition 

information to DOS through the USCIS Electronic 

Information System (ELIS). 

USCIS Customer Service 

Processing Times. Processing times for Form I-485, 

Application to Register Permanent Residence or Adjust Status, 

and Form N-400, Application for Naturalization, mirror those 

reported last year, at approximately five and four and a half 

months, respectively. 

Customer Service and Public Engagement. During this 

reporting year, USCIS established the “USCIS Customer 

Service and Public Engagement Directorate,” which is 

divided into two divisions. The Public Engagement Division 

coordinates and directs dialogue with external stakeholders, 

while the Customer Service Division provides information 

and guidance to USCIS applicants, petitioners and advocates 

regarding immigration benefits. USCIS continued robust 

public engagement, hosting over 1,600 public events with 

over 520,000 participants. 

Policy Manual. Effective January 22, 2013, USCIS 

announced the creation of a new, comprehensive Policy 

Manual designed to adapt easily to changes in immigration 

law and policy. USCIS has released one chapter of the Policy 

Manual, titled “Citizenship and Naturalization.” No specific 

timeframe has been established for future releases. 

Citizenship and Immigration Services Ombudsman ix 
 

 

 

 

 

 

 

 

 

 

 

The Administrative Appeals Office. The Administrative 

Appeals Office (AAO) has delegated authority to adjudicate 

appeals of certain USCIS decisions. In 2005, in an effort to 

increase transparency, the Ombudsman recommended that 

the AAO make available to the public its standard of review; 

precedent decision process; criteria by which cases are 

selected for oral argument; and decision-making statistics. 

Since that time, the AAO has eliminated lengthy processing 

times, but stakeholders continue to raise concerns regarding 

the AAO’s authority, independence, and procedures. The 

AAO is a current area of study for the Ombudsman. 

Fee Waivers. On November 23, 2010, USCIS published 

a first-ever fee waiver request form.While use of Form 

I-912, Request for Fee Waiver, is optional, it simplifies the 

process for applicants by specifying eligibility criteria and 

required documentation. However, many low-income 

applicants continue to encounter barriers to securing a fee 

waiver. Since 2012, an increasing number of stakeholders 

have sought assistance from the Ombudsman on this 

topic. Applicants report repeated rejections of fee waiver 

requests, inconsistent adjudications, and misapplication or 

misunderstanding of proper evidentiary requirements by 

USCIS officers. 

Transformation. The USCIS Office of Transformation 

Coordination oversees the agency’s broad effort to 

modernize processes and systems, and move from a paperbased application and adjudication environment to an 

electronic one. Transformation has the potential to improve 

dramatically the experience of those seeking immigration 

benefits and services, but it has been marked by protracted 

delays in implementation, design defects, and cost overruns. 

On May 22, 2012, the agency launched “the foundational 

release” of its new system, USCIS ELIS. This release enables 

individuals seeking immigration benefits and/or their legal 

representatives to create an account and file a stand-alone 

Form I-539, Application to Extend/Change Nonimmigrant 

Status. Additional releases are scheduled for summer 2013. 

x Annual Report to Congress – June 2013 
Table of Contents 


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


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

Executive Summary ..................................................................................................................................vii
 

Table of Contents ......................................................................................................................................xi 


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

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

Humanitarian............................................................................................................................................. 9
 

• Victims of Abuse,Trafficking and Other Crimes ...................................................................................................................10
 

• Unaccompanied Children ....................................................................................................................................................13
 

• Special Immigrant Juveniles .................................................................................................................................................14
 

• Discretionary Relief and Deferred Action for Childhood Arrivals .........................................................................................16
 

• Reinstatement of Automatically Revoked Petitions ..............................................................................................................18
 

Family and Children ................................................................................................................................. 21
 

• Applications and Petitions for Surviving Relatives ...............................................................................................................22
 

• Petitions to Remove Conditions on Residence .....................................................................................................................24
 

• Provisional and Other Waivers of Inadmissibility .................................................................................................................25
 

Employment ............................................................................................................................................ 27
 

• Requests for Evidence .........................................................................................................................................................28 


• H-1B Specialty Occupation and L-1 Intracompany Transferees ............................................................................................30
 

• EB-5 Immigrant Investor Program .......................................................................................................................................33
 

• Petition Information Management System ...........................................................................................................................39
 

USCIS Customer Service .......................................................................................................................... 41
 

• Processing Times ..................................................................................................................................................................42
 

• Customer Service and Public Engagement ...........................................................................................................................42
 

• Policy Manual ......................................................................................................................................................................43
 

• The Administrative Appeals Office ......................................................................................................................................43
 

• Fee Waivers ..........................................................................................................................................................................47
 

• Transformation ....................................................................................................................................................................49
 

Appendices ............................................................................................................................................. 53 


Citizenship and Immigration Services Ombudsman xi 
 

 

 

Ombudsman’s Office Overview
 

The Ombudsman’s1 mission is to: 

• Assist individuals and employers in resolving problems 

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

• 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 Department of Homeland Security (DHS). 

• 	Independent. The Ombudsman reports directly to the 

DHS Deputy Secretary, and is not part of USCIS. 

• 	Impartial. The Ombudsman works in a neutral, impartial 

manner to improve the delivery of immigration benefits 

 and services. 

• 	Confidential. Individuals and employers seeking 

assistance from the Ombudsman may do so in confidence. 

Any release of confidential information must be based 

on prior consent, unless otherwise required by law 

 or regulation. 

The Ombudsman’s duties and responsibilities include: 

• Analyzing individual complaints and requests for 

assistance to identify common themes; 

• Performing research, writing formal recommendations, 

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’s Office 

is composed of 30 full-time employees with diverse 

backgrounds and areas of subject matter expertise in 

immigration law and policy. These individuals include 

professionals from non-governmental organizations with 

experience working with family and vulnerable populations; 

the private sector with business immigration expertise; 

and federal agencies including, USCIS, U.S. Immigration 

and Customs Enforcement (ICE), U.S. Department of Labor 

(DOL) and U.S. Department of State (DOS). Over the 

reporting period, the office has suffered reductions in staff 

through attrition and has been unable to make new hires 

due to budget constraints. Additional reductions in staff 

may be needed in Fiscal Years (FYs) 2014 and 2015. The 

Ombudsman will continue to leverage its investment in 

online and case management tools, and in human capital, 

to research and resolve the rising number of requests from 

the public and to address policy priorities over the next 

fiscal year. 

Requests for Assistance 

Individuals and employers may contact the Ombudsman 

after encountering problems in the processing of their 

immigration-related applications and petitions. Requests 

for assistance are submitted on the Form DHS-7001, Case 

Assistance Form, by mail, email, facsimile, or preferably 

through the Ombudsman’s Online Case Assistance (OCA) 

system.3 

 The Ombudsman evaluates each request for 

assistance and where appropriate works with the relevant 

USCIS office to resolve the request. In certain scenarios, 

the Ombudsman will expedite a case based on an extreme 

medical emergency or demonstrated economic hardship.4 

Often, when a case request falls outside of the Ombudsman’s 

jurisdiction, the individual or employer is referred to the 

relevant government agency. See Figure 1. 

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. 

3

 Effective October 1, 2012, the Ombudsman replaced its former case management system, Intranet Quorum (IQ) with Case Assistance Analytics and 

Data Integration (CAADI), which improves data tracking and reporting functions based on information collected through the Ombudsman Form 

DHS-7001, Case Assistance Form; https://cisomb.dhs.gov/oca/form7001.aspx (accessed May 20, 2013). 

4

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

See also USCIS Webpage, “Expedite Criteria;” 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=16a6b1be1ce85210VgnVCM100000082ca60a 

RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed May 20, 2013). Expedite criteria include: severe financial loss 

to company or individual; extreme emergent situation; humanitarian situation; cultural and social interest of the United States; national interest; service 

error; or compelling interest of the Service. 

1 Annual Report to Congress – June 2013 
FIGURE 1: OMBUDSMAN CASE ASSISTANCE 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 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 cases involving refugees, asylees, victims of violence, trafficking, and other crimes are required to submit 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 printable case assistance request form. 

After receiving a request for assistance, the Ombudsman: 


1 STEP 1 

Acknowledges receipt of the inquiry and provides a case submission number to confirm receipt. 

2 STEP 2 

Reviews the inquiry 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. 

3 STEP 3 

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

determines how the Ombudsman can help. 

4 STEP 4 

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

difficulties the individual or employer is encountering. 

5 STEP 5 

Communicates to the customer the actions taken to help. 
 

 

 

The Ombudsman is an office of last resort. Individuals 

and employers are encouraged to explore USCIS’s customer 

service options prior to contacting the Ombudsman. 

These include: the NCSC (1-800-375-5283); InfoPass;5

 and 

the e-Request tool.6 

Individuals and employers indicate prior attempted remedial 

actions when submitting requests for case assistance to the 

Ombudsman.7

 In cases submitted to the Ombudsman, 74 

percent of the individuals and employers visited USCIS My 

Case Status online; 66 percent contacted the NCSC; and 

30 percent attended InfoPass appointments at a local field 

office. See Figure 2. 

FIGURE 2: PRIOR ACTIONS TAKEN 

100

90

80

70

60

50

40

30

20

10

0

PERCENTAGE 

Visited USCIS My Case Contacted the NCSC. Attended InfoPass 

Status online. appointment with USCIS 

at a local field office. 

6RXUFH,QIRUPDWLRQFROOHFWHGE\WKH2PEXGVPDQIURPWKH)RUP'+6&DVH$VVLVWDQFH)RUP

5

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


may be made by accessing the USCIS website at http://infopass.uscis.gov/.
 

6

 USCIS Webpage, “e-Request”; https://egov.uscis.gov/e-Request/Intro.do (accessed May 20, 2013).
 

7 The Ombudsman’s case assistance form requests the individual or employer identify which USCIS resources were used prior to contacting 


the Ombudsman.
 

3 Annual Report to Congress – June 2013 
 

 

 

 

 

In the April 1, 2012 to March 31, 2013 reporting period, By integrating OCA and CAADI, the Ombudsman was able 

the Ombudsman received 4,531 requests for assistance.8 to redirect resources previously devoted to the manual intake 

Approximately 91 percent of these were received through of cases received by mail, fax and email. See Figure 3. 

the online system. The combined public-facing OCA and Overall, the requests were divided equally among 

Case Assistance Analytics and Data Integration (CAADI) humanitarian, family and employment-based matters. 

programs resulted in far greater operational efficiency. See Figure 4. 

FIGURE 3: CASE SUBMISSION MODE 

April 1, 2011 to March 31, 2012 April 1, 2012 to March 31, 2013 

Electronic 

Submissions 

60% 

Fax 4% 

Mail 36% 

Electronic 

Submissions 

91% 

Mail 

8% 

Fax 1% 

FIGURE 4: CASE SUBMISSION TYPE 

CASE TYPE TOTAL


+XPDQLWDULDQ 

(PSOR\PHQW 

)DPLO\ 

*HQHUDO 

8

 During the 2013 reporting period, the Ombudsman used two different case management systems. For this reason, some data highlighted in this Report 

is from October 1, 2012 to March 31, 2013. 

Citizenship and Immigration Services Ombudsman 4 
 

 

 

 

 

 

 

 

Outreach 

In-Person Engagements 

During this reporting period, the Ombudsman visited 

communities and stakeholders in every region of the 

United States. Outreach encompassed USCIS site visits, and 

meetings with state and local officials, Congressional staff, 

and members of underserved communities with emerging 

immigrant populations. Travel for outreach sharply declined 

during the second half of the reporting period due to 

budget constraints. While the Ombudsman views in-person 

engagements as mission critical, it is also committed to 

expanding the use of technology and alternative means 

to interact with the public and USCIS offices around the 

country. See Figure 5. 

FIGURE 5: OmbUdsman sItE VIsIts 

WEst 

CEntRal 

sOUthEast 

nORthEast 

5 Annual Report to Congress – June 2013 
 

 

Teleconferences	 

In an effort to inform stakeholders of new initiatives, and 

to invite feedback, the Ombudsman hosted the following 

teleconferences: 

• 	Conditional Permanent Residence: How Is It Working 

 For You? (April 25, 2012) 

• 	Controlling Documents and Travel for Foreign Nationals: 

A Conversation with Customs and Border Protection (CBP) 

and the Citizenship and Immigration Services 

 Ombudsman’s Office (June 19, 2012) 

• 	Special Immigrant Juvenile (SIJ) Status: Overview 

of the Law and Challenges in the Application Process 

(July 31, 2012) 

• 	A Conversation with the CBP Liaison for Non-Government 

 Organizations (August 28, 2012) 

• 	Meet the New Citizenship and Immigration Services 

Ombudsman Maria M. Odom (October 4, 2012) 

• 	The USCIS Administrative Appeals Office 

(December 19, 2012) 

• 	Ombudsman Update: Recent Recommendations and 

Ombudsman Online Case Assistance (February 14, 2013) 

Through in-person engagements and teleconferences, the 

Ombudsman reached more than 3,800 stakeholders in every 

state and in Puerto Rico. 

Formal 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. 

To date, the Ombudsman has published 56 formal 

recommendations.9 

 

Recommendations are developed based on: 

• Trends in individual complaints and requests for 

 case assistance; 

• Outreach conducted through meetings and 

teleconferences with individuals, community-based 

organizations, trade and industry associations, faith 

communities, and immigration attorneys from across 

the country; and 

• Information and data from USCIS and other agencies.
 

During this reporting period, the Ombudsman released the 

following recommendations: 

• Improving the Process for Removal of Conditions on 

Residence for Spouses and Children (February 28, 2013); 

• Improving the Adjudication of Applications and Petitions 

under Section 204(l) of the Immigration and Nationality 

Act (INA) (November 26, 2012); 

• Ensuring a Fair and Effective Asylum Process for 

Unaccompanied Children (September 20, 2012); and 

• Recommendations Regarding USCIS’s Role in the Petition 

Information Management Service (PIMS) (May 16, 2012). 

The Ombudsman also worked to promote interagency 

liaison through: 

• Collaboration with the ICE Office of Enforcement and 

Removal Operations (ERO) Community Outreach 

(formerly known as the Office of the Public Advocate); 

• Facilitating best practices with the Department of Justice 

(DOJ), Office of the Special Counsel for ImmigrationRelated Unfair Employment Practices; 

• Regular meetings with the DOS and USCIS aimed at 

ensuring the orderly and predictable movement of Visa 

Bulletin cut-off dates; and 

• Formation of a working group involving USCIS, CBP, ICE, 

and the DHS Office of the Chief Information Officer 

to facilitate problem solving related to data sharing in 

programs such as the Systematic Alien Verification for 

Entitlements (SAVE) Program.10 

On March 21, 2013, Secretary of Homeland Security Janet 

Napolitano announced the creation of the Council for 

Combating Violence Against Women. The Ombudsman will 

participate in this council and support interagency efforts to 

identify best practices. 

9

 Last year, the Ombudsman conducted a comprehensive review of all past recommendations. See Ombudsman Webpage, “Comprehensive Recommendation Review”; http://www.dhs.gov/comprehensive-recommendation-review (accessed May 20, 2013). 

10 The SAVE 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 Alien Verification for 

Entitlements (SAVE) Program” (Nov. 28, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=1721c2ec0c7c8110VgnVCM1000004718190a 

RCRD&vgnextchannel=1721c2ec0c7c8110VgnVCM1000004718190aRCRD (accessed May 20, 2013). 

Citizenship and Immigration Services Ombudsman 6 
 

 

The Ombudsman’s Annual Conference 

On October 18, 2012, the Ombudsman hosted its second 

Annual Conference. Attendees included individuals from 

non-governmental organizations, the private sector, and 

federal and state entities. Secretary Napolitano and USCIS 

Director Alejandro Mayorkas served as keynote speakers. 

Panel discussions included topics such as the Military 

Accessions Vital to the National Interest (MAVNI) Program; 

Deferred Action for Childhood Arrivals (DACA); L-1 

Intracompany Transferee Adjudications; Judicial Review of 

Immigration Decisions; Security in the Adjudications Process; 

and Government Accountability, among others.11 

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. On May 2, 2013, USCIS 

submitted its response to the Ombudsman’s 2012 Annual 

Report.12 The Ombudsman is currently evaluating USCIS’s 

response, which was delivered as this Report was going 

to press. 

Under Homeland Security Act section 452 (c)(1)(E), the 

Ombudsman is required to “identify any official of the 

Bureau of Citizenship and Immigration Services [now 

USCIS] who is responsible for ... inaction” related to 

Ombudsman recommendations and pervasive and serious 

problems encountered by individuals and employers. 

In the 2014 Report, the Ombudsman will seek to identify 

such officials. 

11 See DHS Blog Posting, “DHS Ombudsman’s Office Holds Second Annual Conference” (Oct. 24, 2012); http://www.dhs.gov/blog/2012/10/24/dhsombudsman%E2%80%99s-office-holds-second-annual-conference (accessed May 20, 2013). 

12 USCIS 2012 Response to the Citizenship and Immigration Services Ombudsman 2012 Annual Report (May 2, 2013); 

http://www.uscis.gov/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20Annual%20Reports/USCIS%20Response%20to%20Ombudsma 

n%202012%20Annual%20Report.pdf (accessed Jun. 12, 2013). 

7 Annual Report to Congress – June 2013 
 

Key Developments and Areas of Study
 

The Ombudsman’s Report must include a “summary of the most pervasive and serious problems 

encountered by individuals and employers.”13 The areas of study presented in this year’s Report 

are organized as follows: 

• Humanitarian; 

• Family and Children; 

• Employment; and 

• USCIS Customer Service. 

13 Homeland Security Act of 2002 § 452(c)(1)(B). 

Citizenship and Immigration Services Ombudsman 8 
29 Annual Report to Congress – June 2013 ess – June 2013 

 

 

Humanitarian 

U.S. immigration law offers humanitarian relief for immigrants in the most desperate of 

situations. During this reporting period, DHS and USCIS sponsored key initiatives to combat 

violence against individuals and ensure protection for victims of human trafficking, domestic 

violence, and other crimes. They demonstrated a willingness to exercise discretion on behalf of 

individuals seeking deferred action, most notably those brought to the United States as children. 

USCIS also took significant action in accepting the Ombudsman’s recommendations on ways to 

improve the processing of unaccompanied children applying for asylum. Extending this same 

commitment in the context of humanitarian reinstatement would provide meaningful relief for 

certain surviving immediate relatives. 
 

 

 

 

Victims of Abuse,Trafficking 

and Other Crimes 

Background 

The Violence Against Women Act (VAWA), enacted in 

1994, provides vital immigration protections for victims 

of trafficking and other violent crimes.14 VAWA benefits 

include: (1) VAWA self-petition (domestic violence victims); 

(2) the T visa (trafficking victims); and (3) the U visa 

(victims of specified crimes). DHS components, including 

USCIS, have implemented these protections. 

On March 7, 2013, President Barack Obama signed the 

Violence Against Women Reauthorization Act of 2013 

(VAWA 2013).15 The reauthorization enhances protection 

for individuals seeking T and U nonimmigrant status. 

VAWA 2013 adds “stalking” as a potential basis for U 

nonimmigrant status; extends age-out protection to 

unmarried children of U visa petitioners; and strengthens 

the International Marriage Broker Regulation Act of 2005 

by adding prohibitions and penalties for criminal acts 

involving children. 

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

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

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

Citizenship and Immigration Services Ombudsman 10 
 

 

 

 

 

 

 

The Blue Campaign, launched by Secretary Napolitano in 

2010, is an example of a DHS-wide effort to coordinate 

and enhance anti-human trafficking efforts.16 As a part of 

the Campaign, USCIS participated in training sessions for 

law enforcement agencies on certification for victims of 

trafficking or violence.17 USCIS has also collaborated with 

ICE’s Homeland Security Investigations Victim Assistance 

Program and Law Enforcement Parole Unit to deliver 

training on trafficking and domestic violence to state and 

local police, immigration-focused non-governmental 

organizations, and a range of community-based 

organizations.18 In addition, USCIS hosted through the 

Vermont Service Center (VSC) VAWA Unit quarterly public 

outreach events. The Ombudsman actively contributed 

to the Blue Campaign’s working group, providing subject 

matter expertise and hosting engagements. 

Ongoing Concerns 

Processing Times for Humanitarian Applications and 

Petitions. The Ombudsman has been monitoring processing 

times for T, U, and VAWA cases. In 2012, USCIS processing 

times were seven months for T visa applications and nine 

months for U visa petitions.19 As of May 2013, USCIS 

processing times were four months for T visa applications, 

while U visa petitions were 15 months.20 As of this Report, 

USCIS is processing VAWA petitions filed before March 5, 

2012, which means VAWA self-petitioners are waiting up to 

19 months for a decision.21 The Ombudsman is concerned 

about extended processing times for these vulnerable 

populations, and will work with USCIS in an effort to 

improve this situation. Ombudsman Odom traveled in April 

2013 to the VSC, where these humanitarian petitions are 

adjudicated, to meet with service center leaders and staff 

to discuss processing times and other issues. 

Employment Authorization for Certain VAWA 

Beneficiaries and Asylum Applicants. 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.” 22 The memorandum provides 

guidance on employment authorization eligibility for 

battered spouses of certain A, E, G, and H nonimmigrants.23 

While stakeholders welcomed the much needed policy 

guidance, they raised concerns regarding the treatment 

of children of self-petitioners. The authorizing statute 

includes the child of the self-petitioner under the definition 

of “VAWA self-petitioner,” which stakeholders interpret to 

mean all rights and benefits granted to the self-petitioner 

extend also to the child.24 Contrary to this reading, the 

USCIS guidance excludes derivative children of a selfpetitioner and requires that they request and receive deferred 

action before becoming eligible to receive employment 

authorization.25 

Additionally, the policy guidance applies a limitation to 

nonimmigrants that is not found in the authorizing statute. 

The memorandum instructs that employment authorization 

should be issued for a period of time equal to the remainder 

of the applicant’s current period of authorized stay.26 This 

limitation does not appear in INA section 106, which allows 

the Secretary to authorize the foreign national spouse to 

engage in employment in the United States if during the 

marriage the nonimmigrant spouse or child was battered 

or had been the subject of extreme cruelty perpetrated by 

the spouse.27 The INA makes no mention of limiting the 

employment authorization to the duration of the applicant’s 

nonimmigrant status. At issue is the ability of an abusive A, 

E, G, or H nonimmigrant to either terminate the marriage or 

divest the victim of standing necessary to seek employment. 

16 DHS Webpage, “Fact Sheet: DHS Blue Campaign”; http://www.dhs.gov/fact-sheet-dhs-blue-campaign (accessed May 20, 2013). 

17 Id. 

18 Id. 

19 Ombudsman Annual Report 2012; http://www.dhs.gov/xlibrary/assets/cisomb-2012-annualreport.pdf (accessed May 20, 2013);
 

20 USCIS Processing Time Information, “USCIS Processing Time Information for our Vermont Service Center” (Apr. 3, 2013); https://egov.uscis.gov/cris/
 

processingTimesDisplay.do (accessed May 20, 2013).
 

21 Id. 

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


Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants” (Dec. 12, 2012); http://www.uscis.gov/USCIS/Outreach/
 

Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/VAWA-Authorized-EADs-PM.pdf (accessed May 20, 2013).
 

23 Id. See also INA § 101(a)(15)(A), (E), (G), and (H). An “A” nonimmigrant visa is for a diplomat and foreign government official. An “E”
 

nonimmigrant visa is for a treaty trader and treaty investor. A “G” nonimmigrant visa is for an employee of a designated international organization, and 


NATO. An “H” nonimmigrant visa is for an employee of a specialty occupation in a field requiring highly-specialized knowledge.
 

24 INA § 101(a)(51) defines a VAWA self-petitioner to include: the individual filing the petition, or the child of the individual filing the petition, who 


qualifies for relief under (A) (iii), (iv), or (vii) of section 204(a)(1)(A); (B)(ii) or (iii).
 

25 See supra note 22.
 

26 Id. See also INA § 106, and Violence Again Women and Department of Justice Reauthorization Act of 2005 § 844, Pub. Law No. 109-162.
 

27 INA § 106(a).
 

11 Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

With regard to asylum applicants, on August 26, 2011, 

the Ombudsman issued a recommendation to improve 

coordination and communication related to the “asylum 

clock.”28 Subsequent litigation on this topic resulted in 

the federal court for the Western District of Washington 

on May 8, 2013, issuing an order preliminarily approving 

a settlement agreement in A.B.T. et al. v. USCIS, et al.

29 

This nationwide class action lawsuit challenged the denial 

of work authorization to asylum seekers whose asylum 

applications remained pending for a period longer than 

180 days. 

The ABT Settlement Agreement changes the method by which 

USCIS and the Executive Office for Immigration Review 

(EOIR) calculate the 180-day waiting period before which 

an asylum applicant can apply for work authorization.30 

A Notice to Class Members describes eligible ABT class 

members, benefits provided, and how to bring a claim 

under the settlement agreement.31 

Requests for Evidence and VAWA Petitions. Stakeholders 

have raised concerns with USCIS Requests for Evidence 

(RFEs) in VAWA adjudications. VAWA self-petitioners bear 

the burden of proof to establish eligibility, and USCIS is 

required to consider “any credible evidence” submitted.32 

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 that victims are afforded full protection under the 

law, USCIS adjudicators are specifically directed to, “give 

due consideration to the difficulties some [VAWA] selfpetitioners may experience in acquiring documentation, 

particularly documentation that cannot be obtained 

without the abuser’s knowledge or consent.”33 

Stakeholders report that USCIS officers, in some cases, issue 

VAWA applicants RFEs that ask for the type of primary 

documentation used to prove a good faith marriage in 

non-VAWA cases (e.g., original marriage certificates, joint 

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

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

regulations – thereby holding VAWA applicants to a higher 

standard of proof than is actually required by the applicable 

law. Such requests add additional processing time to already 

backlogged VAWA adjudications – time during which, in 

many circumstances,VAWA applicants are unable to obtain 

employment authorization. 

U Nonimmigrant Derivatives and Age-Out Provisions. 

On December 12, 2012, USCIS published for comment an 

interim policy memorandum titled, “Age-Out Protection for 

Derivative U Nonimmigrant Status Holders: Pending Petitions, 

Initial Approvals, and Extensions of Status.” 34 Pursuant to 

the original U visa legislation, qualifying crime victims 

may request derivative status for certain relatives, such as 

unmarried sons or daughters who are under 21.35 For 

many years, qualified derivatives who turned 21 during 

the processing of their request for U status lost eligibility 

for relief. USCIS’s interim policy memorandum sought to 

address this problem, but has since been rendered moot 

by VAWA 2013, which protects derivatives as long as a U 

petition was filed on their behalf prior to the individual 

turning 21 years old.36 The Ombudsman urges USCIS to 

issue updated guidance and regulations. 

28 Ombudsman Recommendation 50, “Employment Authorization for Asylum Applicants” (Aug. 26, 2011); http://www.dhs.gov/ombudsmanrecommendation-employment-authorization-asylum-applicants (accessed May 20, 2013).
 

29 A.B.T. et al. v. U.S. Citizenship and Immigration Services, No. 11-02108 (W.D.Wash. filed December 15, 2011).
 

30 Settlement Agreement, B.H., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D.Wash. 2013); http://
 

legalactioncenter.org/sites/default/files/60-1_Settlement%20Agreement.pdf (accessed May 20, 2013).
 

31 Class Notice, B.H., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D.Wash. 2013); http://legalactioncenter.org/ 

sites/default/files/Class%20Notice%20to%20be%20posted%20by%20plaintiffs%205-9-13%20FIN.pdf (accessed May 20, 2013).
 

32 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.
 

33 INS 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).
 

34 USCIS Interim Policy Memorandum, “Age-Out Protection for Derivative U Nonimmigrant Status Holders: Pending Petitions, Initial Approvals, and 


Extensions of Status” (Oct. 24, 2012); http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for%20Comment/
 

U-Visa-Age-Out-Interim-PM.pdf (accessed May 20, 2013).
 

35 See supra note 16 § 805(a)(7)(A): “CHILDREN- An unmarried alien who seeks to accompany, or follow to join, a parent granted status under section 


101(a)(15)(U)(i), and who was under 21 years of age on the date on which such parent petitioned for such status, shall continue to be classified as a 


child for purposes of section 101(a)(15)(U)(ii), if the alien attains 21 years of age after such parent’s petition was filed but while it was pending.”
 

36 Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 805 (2013). 

Citizenship and Immigration Services Ombudsman 12 
 

 

 

 

 

 

 

 

Employment Authorization for T Applicants and 

U Petitioners. Stakeholders have expressed concern 

regarding the inability of T and U applicants to obtain 

work authorization. The regulations permit USCIS to make 

“bona fide determinations” in such case, which may form 

the basis for employment authorization.37 According to 

stakeholders, USCIS rarely exercises this authority, which 

presents concerns given that processing times for U cases 

have increased to approximately 15 months. This creates a 

situation where applicants are unable to support themselves. 

Unaccompanied Children 

Background 

The Immigration and Nationality Act (INA) and William 

Wilberforce Trafficking Victims Protection Reauthorization 

Act of 2008 (TVPRA)38 afford procedural and substantive 

protections to unaccompanied alien children (UACs). 

By definition, UACs have no lawful immigration status in 

the United States, have not attained 18 years of age, and 

have no parent or legal guardian in the United States, or 

otherwise available to provide care and physical custody.39 

The TVPRA changed significantly the asylum process for 

UACs by shifting initial consideration of asylum claims filed 

in removal proceedings from the DOJ EOIR to USCIS.40 The 

legislation further required promulgation of regulations 

“to govern both the procedural and substantive aspects of 

adjudicating [UAC] asylum claims.”41 

For children apprehended and placed into federal custody 

and Immigration Court proceedings, the CBP, ICE, EOIR, 

and the Department of Health and Human Services (HHS) 

all have a role in determining and validating UAC status. 

An individual with UAC status is eligible for certain public 

benefits and protections in the United States. In order to 

make a UAC determination, the responsible office must 

interview the child, often discussing potentially traumatic 

experiences. However, even after these agencies determine 

that the minor is a UAC, and USCIS accepts Form I-589, 

Application for Asylum and Withholding of Removal, USCIS had 

undertaken the practice of redetermining UAC status 

at subsequent asylum interviews with the child. 

This procedure, with at times protracted supervisory and 

USCIS Asylum Division Headquarters review, has created 

delay and confusion. Rather than facilitating the expedited, 

non-adversarial interviews envisioned by Congress, the 

USCIS Asylum Division, as a matter of policy, has not 

accepted the original UAC finding by the Immigration Judge 

issued with ICE’s consent or the USCIS Nebraska Service 

Center’s (NSC’s) jurisdictional determination rendered in 

advance of accepting Form I-589 (or ICE or CBP’s prior 

UAC determination). Absent guidance, some USCIS asylum 

offices have identified and developed best practices to 

address sensitivities and challenges associated with UAC 

claims. In addition to the UAC redeterminations, issues 

include inadequate interviewing methods and approaches 

for UACs, difficulty rescheduling interviews, and a general 

misunderstanding of the roles and responsibilities of certain 

adults associated with UACs. 

Recommendations 

On September 20, 2012, the Ombudsman recommended 

that USCIS: 

1) Accept jurisdiction of UAC cases referred by the EOIR; 

2) Accept jurisdiction of cases filed by children in federal 

custody under the HHS; 

3) Follow established UAC-specific procedures, expand 

implementation of certain best practices, and enlist 

clinical experts for quality assurance and training. 

More specifically, USCIS should: 

 a) Establish points of contact for the public to 

 improve communication, coordination, and 

 problem solving; 

 b) Pre-assign UAC cases to officers with specialized 

 knowledge and skills; and 

 c) Contract with clinical experts adept at 

 interviewing vulnerable children as part of 

 an ongoing quality assurance and training 

 component of the UAC asylum program; 

4) Limit headquarters review to a process that can be 

managed within 30 days; and 

5) Issue as soon as possible regulations regarding the UAC 

 asylum process. 

37 8 C.F.R. § 214.11(a).
 

38 William Wilberforce Trafficking Victims’ Protection Reauthorization Act of 2008 (TVPRA) § 235(d)(8), Pub. L. No. 110-457.
 

39 William Wilberforce Trafficking Victims’ Protection Reauthorization Act of 2008 (TVPRA) § 235(d)(8), Pub. L. No. 110-457; see also USCIS Webpage,
 

“Questions and Answers: USCIS Initiates Procedures for Unaccompanied Children Seeking Asylum” (Mar. 25, 2009); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b3b6040faa930210VgnVCM1000004718190 

aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed May 20, 2013). 

40 INA § 208(b)(3)(C). 

41 See supra note 38. 

13 Annual Report to Congress – June 2013 
USCIS Response 

On April 11, 2013, USCIS responded to the Ombudsman’s 

formal recommendations, stating the agency will adopt UAC 

determinations made for custody purposes by CBP and ICE.42 

This new policy will positively affect all minors apprehended 

and placed into federal custody with the HHS, helping to 

ensure a consistent process for scores of children who seek 

asylum in the United States. The agency further agreed to 

follow established UAC procedures, designate points of 

contact for the public, implement measures to improve 

the quality and consistency of UAC adjudications, and 

limit the amount of time cases may be held under review 

by headquarters’ staff. USCIS also stated its intent to issue 

statutorily mandated regulations regarding the UAC asylum 

process. The agency declined to pre-assign UAC cases to 

specially-trained officers. 

Ongoing Concerns 

USCIS has taken concrete steps to address many of the 

Ombudsman’s UAC recommendations. It is important for 

USCIS to commit to timely implementation of its new policy 

with meaningful training and quality control. 

Special Immigrant Juveniles 

Background 

Abused, abandoned or neglected children without 

immigration status may obtain permission to remain 

lawfully in the United States through the Special Immigrant 

Juvenile (SIJ) program.43 During the past two years, the 

Ombudsman has shared feedback, requests for assistance, 

and other concerns regarding the processing of SIJ cases 

with USCIS. The agency has demonstrated a willingness to 

address ongoing problems and to intervene as appropriate 

to resolve pending matters. 

Ombudsman outreach in 2010 and 2011 indicated that 


stakeholders were encountering numerous problems related 

to SIJ adjudications, including protracted processing times, 

inadequate interviewing techniques and adjudications, and 

burdensome or intrusive RFEs relating to underlying juvenile 

dependency orders. Stakeholders further experienced 

inconsistent procedures to request expedited review, as 

well as fee-waiver request denials for cases with prima facie 

evidence of juvenile dependency. 

Recommendations 

On April 15, 2011, the Ombudsman published a 

recommendation titled, “Special Immigrant Juvenile 

Adjudications: An Opportunity for Adoption of Best Practices,”44 

which called on USCIS to: 

1) Standardize its practices of: 

 a) Providing specialized training for those officers 

 adjudicating SIJ status; 

 b) Establishing dedicated SIJ units or points 

 of contacts at local offices; and 

 c.) Ensuring adjudications are completed within the 

 statutory timeframe; 

2) Cease requesting the evidence underlying state 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. 

42 USCIS Policy Memorandum, “Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien 


Children,” (May 28, 2013); “Updated Service Center Operations Procedures for Accepting Forms I-589 Filed by Unaccompanied Alien Children,” (Jun.
 

4, 2013); http://www.uscis.gov/USCIS/Humanitarian/Refugees%20&%20Asylum/Asylum/Minor%20Children%20Applying%20for%20Asylum%20
 

By%20Themselves/service-ctr-ops-proced-accepting-form-i589-unaccompanied-alien-children.pdf (accessed Jun. 4, 2013).
 

43 INA § 101(a)(27)(J); 8 C.F.R. § 204.11.
 

44 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 May 20, 2013).
 

Citizenship and Immigration Services Ombudsman 14 
 

 

 

 

 

 

 

 

 

USCIS Response 

In 2011, USCIS agreed in part with the recommendations, 

concurring as to the need for standardization, and noting 

that the agency “has already provided extensive training 

....”45 This training was delivered to 235 agency employees 

and discussed eligibility for SIJ status, potential forms of 

relief, and related processes. It further examined legislative 

developments from the Trafficking Victims Protection 

Reauthorization Act of 2008, and SIJ litigation, including the 

Perez-Olano, et al. v. Holder, et al., Settlement Agreement.46 

USCIS indicated it was contemplating future training 

initiatives, such as a program on child-sensitive interviewing 

techniques. 

USCIS disagreed with the recommendation to establish local 

points of contact, stating that the limited number of SIJ cases 

annually (1,484 in FY 2009 and 1,879 in FY 2010) makes 

“specific SIJ units, or a dedicated SIJ-officer within each 

field office, impractical.”47 USCIS also noted its position 

that properly trained immigration officers, with appropriate 

supervision, are capable of handling SIJ adjudications.48 

Furthermore, USCIS stated that in FY 2010, the agency 

established internal, regional points of contact (POCs) for 

SIJ cases. These POCs are available to answer questions and 

provide assistance to USCIS field office personnel. They 

also work with USCIS Headquarters to update guidance and 

monitor expedite requests. 

USCIS concurred with the recommendation to maintain 

adjudications within the statutory timeframe.49 Monthly 

reports of all pending SIJ cases are generated and USCIS 

regional office POCs work with field offices to monitor and 

complete adjudication-ready cases. Pursuant to the PerezOlano Settlement Agreement, USCIS has also established a 

dedicated email account to receive complaints related to 

timely processing. USCIS stated in December 2012 that they 

had received no complaints through the account, although 

at the time of reporting, the email address did not appear 

available on the USCIS webpage. 

USCIS noted that it “appreciate[s] that there is a delicate 

balance between the role of the state juvenile court providing 

for the best interest of the child and the role of USCIS in 

ensuring the immigration benefit is granted properly.”50 

USCIS further stated that orders lacking specific findings 

may not be sufficient, and may need to be supplemented 

by separate findings or other relevant evidence to establish 

the factual basis for the order. USCIS indicated that it would 

examine ways to communicate with state courts through 

the DOJ, provide court personnel information regarding 

SIJ cases, and clarify the type of language USCIS requires in 

state court decisions. Since the response in 2011 and in this 

reporting period, USCIS has completed several in-person 

trainings for state juvenile attorneys and social workers, and 

stated that it remains committed to continuing this type 

of outreach. 

USCIS concurred with the recommendation to issue new 

guidance. On September 6, 2011, USCIS issued a Notice 

of Proposed Rulemaking (NPRM) for the SIJ program.51 

45 USCIS Memorandum, “Response to Recommendation 47, Special Immigrant Juvenile (SIJ) Applications: An Opportunity for Adoption of Best Practices” 

p. 2 (Jul. 13, 2011); http://www.uscis.gov/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20Formal%20Recommendations/cisomb2011-response47.pdf (accessed May 20, 2013).
 

46 Perez-Olano, et al. v. Holder, et al, CV 05-3604 (C.D. Cal. 2005). See generally USCIS Memorandum, “Implementation of the Special Immigrant Juvenile 


Perez-Olano Settlement Agreement” (Apr. 4, 2011); http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/perez-olano-settlement.pdf (accessed 


May 20, 2013). The memorandum addresses how, in light of the class action settlement filed on behalf of SIJs, the agency will handle certain motions,
 

post statistics and respond to requests to “rely on the original juvenile court order to establish the current statutory requirement of non-viability of 


reunification with one or both parents due to abuse, neglect, abandonment, or a similar basis found under State law.”
 

47 See supra note 45 at p. 4. 

48 Id. 

49 The agency noted in its response that the 180-day requirement does not relate to the adjustment of status application, and does not include the days 


between a missed appointment and a rescheduled one, or the days between when USCIS sends an RFE and the date the petitioner responds to an RFE.
 

See supra note 45 at p. 4.
 

50 See supra note 45.
 

51 “Special Immigrant Juvenile Petitions,” 76 Fed. Reg. 54978 (Sept. 6, 2011).
 

15 Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

Ongoing Concerns 

Over this reporting period, stakeholders periodically 

reported noncompliance by USCIS with the mandatory 

180-day processing time for SIJ petitions, often by a 

significant margin. Stakeholders encounter persistent 

problems with specific USCIS field offices applying varying 

standards of proof, notwithstanding agency efforts to 

conduct remedial outreach and training. Frustration 

emerging from such experiences has led some applicants to 

propose that SIJ cases be handled by a specialized unit, such 

as the VSC VAWA Unit. 

To date, stakeholders continue to report receiving RFEs 

related to state court orders that clearly explain the 

underlying facts and rationale for dependency findings. 

They further indicate that USCIS adjudicators question 

declaratory judgments and require additional information 

related to state court orders, even when such information 

is under court seal and can be burdensome to obtain.52 

Stakeholders report unwarranted delays and Notices of 

Intent to Deny (NOID) that are not supported by the facts 

of their case.53 

Case Example: A County Judge found that a juvenile 

foreign national had been abused, abandoned, or 

neglected by his parents and issued a guardianship order. 

Through counsel, the child filed a Form I-360, Petition 

for Amerasian, Widow(er) or Special Immigrant, with 

USCIS. Although the petition included the court order 

from the County Judge, USCIS requested a copy of the 

court transcripts to evaluate the order. The child’s attorney 

provided copies of the court transcript. While awaiting 

a decision, the attorney contacted the Ombudsman for 

assistance because he believed the request for the court 

transcripts was inappropriate. The Ombudsman contacted 

USCIS and the petition was approved. 

The Ombudsman continues to monitor cases from the field 

and work with USCIS leaders to improve the processing of 

SIJ petitions. 

Upon receiving similar and ongoing inquiries involving 

SIJ cases throughout 2012, the Ombudsman initiated 

discussions with leaders in the USCIS Field Operations 

Directorate. These officials have been instrumental in 

resolving and forging more effective communications related 

52 Information provided by stakeholders to the Ombudsman (Aug. 23, 2012). 

53 Information provided by stakeholders to the Ombudsman (Sept. 9, 2011; Dec. 20, 2011; Jan. 9, 2012; Feb. 15, 2012; Feb. 28, 2012). 

54 See generally INA § 103(a) (describing DHS Secretary’s authority to enforce immigration laws). 

55 See generally, Shoba Sivaprasad Wadia, “Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law,” University of New Hampshire 


Law Review,Vol. 10, No. 1 (Jul. 2011).
 

56 USCIS Memorandum, “Exercising Prosecutorial Discretion” HQOPP 50/4 (Nov. 17, 2000).
 

to SIJ concerns. The Ombudsman was invited to participate 

in training calls and looks forward to that opportunity in 

2013, when USCIS formalizes these trainings. Additionally, 

concerns pertaining to fee waivers are being addressed on 

a case-by-case basis with relevant agency intake and service 

center officials. 

Discretionary Relief 

and Deferred Action 

for Childhood Arrivals 

Background 

Deferred action is an exercise of agency discretion to allow 

an individual to remain with authorization in the United 

States without fear of removal.54 It has been used since 

the 1970s to address compelling circumstances involving 

removable noncitizens.55 

Factors to be considered in evaluating a request for deferred 

action include, but are not limited to, the presence of 

sympathetic or compelling factors related to the applicant’s 

health, ability to travel, home country conditions, family 

ties and length of time in the United States, history of 

employment and/or community service, military service, 

and overall priority for, as well as the likelihood of, 

removal.56 Deferred action may be granted and/or extended 

for any period of time deemed necessary to address the 

circumstances presented, and has typically been granted 

Citizenship and Immigration Services Ombudsman 16 
in one-year increments. Once granted deferred action, a 

recipient can apply for, upon the showing of economic need, 

employment authorization for a period commensurate with 

the grant of deferred action.57 

Long-standing agency guidance indicates that a request for 

deferred action should be made to the USCIS field office 

director.58 The request can be submitted in person during 

an InfoPass appointment or by mail. A request for deferred 

action does not require payment of any fee but must include: 

• An explanation in writing as to why the individual 

is seeking deferred action as well as supporting 

 documentation; 

• Any available primary or secondary proof of identity and 

nationality, including a birth certificate, a passport and/or 

identification card, notarized affidavit(s), school or 

medical records, etc.; 

• A copy of any previously issued visa used by the individual 

to gain admission to the United States and evidence of 

such admission; and 

• Two passport style photos.59 

Where the individual requesting deferred action is 

represented, he or she should also submit a completed Form 

G-28, Notice of Entry as Attorney or Accredited Representative.60 

Recommendations 

On April 6, 2007, the Ombudsman recommended that 

USCIS post general information on deferred action, maintain 

statistics on the issuance and denial of deferred action 

requests, and designate a headquarters official to review 

grants and denials of deferred action requests on a quarterly 

basis to ensure that like cases are decided in a like manner.61 

Over four years later, on July 1, 2011, the Ombudsman 

released a second recommendation on this topic, again 

urging USCIS to publish information describing deferred 

action, inventory pending requests at USCIS field offices, 

and establish internal processes and procedures to ensure 

the timely, consistent handling of requests for relief.62 

USCIS stated that because deferred action is not an 

immigration benefit, but rather a case-specific (not 

categorical) exercise of prosecutorial discretion, the 

publication of processing times is not required.63 

Ongoing Concerns 

Although USCIS previously committed to tracking deferred 

action requests,64 the agency is currently unable to provide 

an inventory of requests and decisions.65 The Ombudsman 

remains concerned with USCIS’s tracking of deferred action 

requests filed at its local field offices. 

USCIS maintains limited information related to the 

processing of deferred action requests. The agency does not 

monitor or track RFEs, the frequency or nature of interviews, 

or any other qualitative or quantitative aspects of deferred 

action decision-making. As of March 7, 2012, USCIS did 

make available to all field offices a Standard Operating 

Procedure (SOP) for handling deferred action requests. 

This internal SOP has not been made available to the 

public.66 Aside from the SOP, USCIS has offered no updated 

training for field, regional or headquarters staff on deferred 

action in general, or created any additional guidance 

materials.67 USCIS does not intend to post information on 

its public website on how to submit deferred action requests 

to a USCIS district office.68 

57 8 C.F.R. § 274a.12(c)(14). 

58 See supra note 56. See also INS, Operations Instructions, O.I. § 103.1(a)(1)(ii) (1975). 

59 Information provided by USCIS to the Ombudsman (Mar. 7, 2012). 

60 Id. 

61 Ombudsman Recommendation 32, “Recommendation from the CIS Ombudsman to the Director, USCIS” (Apr. 6, 2007); http://www.dhs.gov/ 

xlibrary/assets/CISOmbudsman_RR_32_O_Deferred_Action_04-06-07.pdf (accessed May 20, 2013).
 

62 Ombudsman Recommendation 48, “Deferred Action: Recommendations to Improve Transparency and Consistency in the USCIS Process”
 

(Jul. 11, 2011); http://www.dhs.gov/xlibrary/assets/cisomb-combined-dar.pdf (accessed May 20, 2013).
 

63 USCIS Response to Recommendation 48 (Oct. 27, 2011); http://www.uscis.gov/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20 

Formal%20Recommendations/cisomb-2011-response-48.pdf (accessed May 20, 2013).
 

64 USCIS Response to Recommendation 48 (Oct. 27, 2011), p. 2; http://www.uscis.gov/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20
 

Formal%20Recommendations/cisomb-2011-response-48.pdf (accessed Jun. 19, 2013).
 

65 Information provided by USCIS to the Ombudsman (Jun 19, 2013).
 

66 Information provided by USCIS to the Ombudsman (Mar. 7, 2012).
 

67 Information provided by USCIS to the Ombudsman (Sept. 2012).
 

68 See supra note 63.
 

17 Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

 

Deferred Action for Childhood Arrivals 

On June 15, 2012, Secretary Napolitano announced a special 

form of deferred action — Deferred Action for Childhood 

Arrivals (DACA) — for certain young people who were 

brought to the United States as children, do not pose a risk 

to national security or public safety, and meet established 

criteria. In a 60-day timeframe, USCIS made the Secretary’s 

policy into an operational plan, effectively implementing 

many of the Ombudsman’s past recommendations. 

USCIS launched DACA as a “program” on August 15, 2012, 

accompanied by robust community engagement and wellcrafted instructions for prospective filers.69 USCIS also 

created Form I-821D, Consideration for Deferred Action for 

Childhood Arrivals.

70 The agency has tracked filing data, 

receipt issuance and decisions, and published results through 

its website.71 The agency has also demonstrated through this 

program a commitment to training staff on how to render 

discretionary decisions. This level of internal and external 

information sharing and willingness to create and monitor 

filing receipts, processing protocols and timeframes is an 

example of best practices for administering deferred action 

and other forms of lawful discretionary requests submitted 

to USCIS every year. 

Reinstatement of Automatically 

Revoked Petitions 

Background 

Certain immediate relatives whose family-based petitions are 

automatically revoked upon the death of the petitioner may 

request reinstatement, and USCIS, in its discretion, may grant 

such a request for humanitarian reasons.72 Stakeholders have 

raised concerns that humanitarian reinstatement requests are 

considered a low priority by USCIS. There is no standardized 

method for submitting these requests. Once received, 

requests are subject to protracted processing times and have 

high rates of denial.73 Starting in November 2012, USCIS 

began tracking humanitarian reinstatement requests. Prior 

to that, USCIS offices were not maintaining statistical records 

for these requests. See Figure 6. 

FIGURE 6: HUMANITARIAN REINSTATEMENT REQUESTS 

(November 2012 to May 2013)
 

OFFICE RECEIPTS DENIED APPROVED 

&DOLIRUQLD6HUYLFH&HQWHU   

1DWLRQDO%HQHÀWV&HQWHU   

9HUPRQW6HUYLFH&HQWHU   

 Total 3,104 1,101 142

6RXUFH,QIRUPDWLRQSURYLGHGE\86&,6WRWKH2PEXGVPDQ0D\

69 USCIS Webpage, “Consideration of Deferred Action for Childhood Arrivals Process” (Jan. 18, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aR 

CRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD (accessed May 20, 2013). 

70 In implementing DACA, USCIS created and released a dedicated deferred action request form, which also requires individuals seeking relief to 

simultaneously submit the Form I-765, Application for Employment Authorization, with a fee of $380.00 plus a fee of $85 for biometrics capture. 

71 USCIS Webpage, “Data on Individual Applications and Petitions”; 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=1b52d725f5501310VgnVCM100000082ca60 

aRCRD&vgnextchannel=1b52d725f5501310VgnVCM100000082ca60aRCRD (accessed May 20, 0213). 

72 8 C.F.R. § 205.1(a)(3)(i)(C). 

73 See Ombudsman Teleconference, “Immigration Survivor Benefits under INA §204(l): A Conversation with USCIS” (Jul. 27, 2011); 

http://www.dhs.gov/telecon-recap-survivor-benefits-under-ina-%C2%A7204l-conversation-uscis (accessed May 20, 2013). 

Citizenship and Immigration Services Ombudsman 18 
 

 

Adjust Status.76 This limited reinstatement possibility is 

the only means by which surviving relatives, who are not 

covered by INA section 204(l) or who were not married to a 

U.S. citizen, may continue to seek immigration benefits after 

the death of the petitioning relative.77 

Reinstatement cannot be requested until after USCIS’s 

approval of Form I-130, Petition for Alien Relative. Such 

requests must be accompanied by Form I-864, Affidavit 

of Support under Section 213A of the Act, from a substitute 

sponsor, including documents evidencing favorable 

discretionary factors. The Adjudicator’s Field Manual (AFM) 

Ch. 21.2(h)(1)(C) states that the discretionary authority to 

reinstate a revoked petition should be applied in light of the 

following factors: 

1) The impact of revocation on the family unit in the United 

States, especially on U.S. citizen or Legal Permanent 

Resident (LPR) relatives or other relatives living lawfully 

in the United States; 

2) The beneficiary’s advanced age or poor health; 

3) The beneficiary’s 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.78 

USCIS has published general guidance regarding how to 

request humanitarian reinstatement. The AFM at Ch. 21.2(h) 

(1)(C) states: 

[T]o request humanitarian reinstatement of a 

revoked petition, the beneficiary should send a 

written request for reinstatement to the USCIS 

service center or field office that approved the 

The automatic revocation regulation applies to previously 

approved petitions or self-petitions filed under INA section 

204 upon the death of a petitioner, unless: 

1) The petition is deemed under 8 C.F.R. section 

204.2(i)(1)(iv) to have been approved as a Form 

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

 Immigrant, under 8 C.F.R. section 204.2(b); or 

2) USCIS determines, as a matter of discretion exercised 

for humanitarian reasons in light of the facts of a 

particular case, that it is inappropriate to revoke the 

approval of the petition.74 

The burden of requesting humanitarian reinstatement rests 

with the principal beneficiary of the petition.75 Requests are 

typically submitted by letter to the district office an service 

center director who originally approved the petition or to 

the USCIS office responsible for adjudicating any related 

Form I-485, Application to Register Permanent Residence or 

74 8 C.F.R. § 205.1 (a)(3)(i)(C)(2). Also, as will be discussed in greater detail in the Family and Children section, at page 22 of this Report, the plain 

language of §204(l) obviates the need for covered beneficiaries to seek humanitarian reinstatement because it preserves petitions “immediately prior to 

the death” of the qualifying relative. 

75 The principal beneficiary requesting humanitarian reinstatement must further establish that a person related to him or her in one of the ways 

described in INA § 213A(f)(5)(B) is willing and able to file an affidavit of support under 8 C.F.R. § 213a as a substitute sponsor, in addition to 

establishing humanitarian factors described in the Adjudicator’s Field Manual (AFM) Ch. 21.2(h)(1)(C); 

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-3513.html#0-0-0-387 (accessed May 20, 2013). 

76 AFM Ch. 21.2(h)(1)(C); http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-3513.html#0-0-0-387 (accessed 

May 20, 2013). 

77 See generally Ombudsman Recommendation 55, “Improving the Adjudication of Applications and Petitions Under Section 204(l) of the Immigration 

and Nationality Act” (Nov. 26, 2012); http://www.dhs.gov/sites/default/files/publications/cisombimproving-adjudication-under-ina-204l-11262012.pdf (accessed May 20, 2013). Individuals seeking survivor benefits under INA §204(l) must have 

resided in the United States at the time of the qualifying relative’s death, and at the time the immigration survivor benefit application is filed. If unable 

to demonstrate such residence, survivors must seek humanitarian reinstatement under 8 C.F.R. § 205.1(a)(3)(iii)(C)(2). Stakeholders report that many 

applicants covered by INA §204(l) are nonetheless required by USCIS to establish their eligibility for humanitarian reinstatement under 8 C.F.R. § 

205.1(a)(3)(iii)(C)(2). The widows and widowers of U.S. citizens are allowed to continue seeking immigration benefits after the death of the 

petitioner under separate provisions of INA § 201(b)(2)(A)(i). 

78 See supra note 71. 

19 Annual Report to Congress – June 2013 
 

 

 

 

 

 

petition except that, if the beneficiary 

has properly filed an application for 

adjustment with USCIS, the written request should 

be submitted to the USCIS office with jurisdiction 

over the adjustment application. The written 

request must include a copy of the approval 

notice for the revoked petition, the death certificate 

of the petitioner (or other qualifying relative 

and, if required by section 213A of the Act and 

8 CFR part 213a, a Form I-864 from a 

substitute sponsor and proof of the substitute 

sponsor’s relationship to the beneficiary.79 

Case Example: Survivors and beneficiaries of a family 

petition filed a request for reinstatement with: evidence of 

favorable humanitarian factors; an Affidavit of Support from 

a substitute relative; the relevant death certificate; and a 

descriptive brief. On January 10, 2012, the family received 

an acknowledgment letter from USCIS stating, “[O]ur office 

processes this case type as our resources and priorities allow. 

We do not have an estimated timeframe for how long it

may take to review your request.” Subsequently, the family 

submitted several follow-up requests, but USCIS did not 

take any further action on their request. The survivor was 

scheduled for a January 2013 removal hearing before the 

Immigration Court. Because reinstatement would provide 

a basis for terminating proceedings before the Immigration 

Court, the family urgently needed a response from USCIS. 

The Ombudsman made repeated inquiries to USCIS, and 

the agency responded in December 2012, stating that it 

would issue a request for evidence to the survivor, but it did 

not adjudicate the request by the January 2013 hearing date. 

USCIS has acknowledged that such requests often bounce 

back and forth between district and service centers due to 

confusion regarding jurisdiction. 

Ongoing Concerns 

Stakeholders report that, in practice, factors considered in 

reinstatement decisions appear to vary depending on where 

requests are adjudicated.80 

USCIS local offices and stakeholders report that, because 

reinstatement requests are treated differently from standard 

filings with established receipt and processing protocols, 

they are difficult to track. USCIS operations for almost 

all applications are organized by receipting centers called 

“lockboxes,” where forms are processed and data is entered 

in a case management and tracking system.81 However, 

humanitarian reinstatement requests are not processed 

through the lockbox system.82 

Although USCIS has made meaningful progress in tracking 

humanitarian reinstatement requests, there remains in some, 

stakeholders who file requests report that they are given little 

information regarding the review and processing of their 

cases. There are no posted processing times or predictable 

procedures for submitting supplementary information.83 

Conclusion 

During this reporting period, USCIS has dedicated significant 

resources to humanitarian programs. USCIS, in partnership 

with other DHS components, has worked to increase 

public awareness of trafficking and domestic violence, and 

the immigration relief available to these victims. USCIS

made meaningful strides to clarify policy guidance for 

some programs including UAC’s. Other options, such as 

humanitarian reinstatement and deferred action, remain in 

need of attention and more uniform procedures. 

79 See supra note 71. 

80 One USCIS service center provides that requests should include documentation to identify and document the humanitarian reason for reinstatement. 

Documentation may include: (1) Evidence of long-time residence and any equity in the United States; (2) Evidence of relationship to other family 

members with evidence of their immigration status in the United States; (3) Evidence of health-related factors that would establish the need for 

reinstatement; or (4) Evidence of current political or religious conditions in the beneficiary’s country of origin that would indicate that the beneficiary 

would suffer if not permitted to immigrate to the United States. This USCIS service center also requires evidence about the deceased petitioner’s 

immigrant intent if the death occurred outside the United States. USCIS Vermont Service Center, “VSC Stakeholders Meeting Questions” (Aug. 20, 

2009). One USCIS district office would not state particular criteria in response to a stakeholder question, and informed stakeholders that it was difficult 

to articulate the exact favorable and negative factors for reinstatement criteria because each case varies. Stakeholders were advised that the reinstatement 

decision is solely within the agency’s discretion. USCIS Chicago District Office, “Midyear Stakeholders’ Meeting” (Apr. 6, 2009). 

81 USCIS lockboxes are receipting centers for USCIS applications that handle fees and route applications. They are run by contractor personnel and have a 

limited number of USCIS personnel attached to them to make decisions on fee waivers and other issues. The USCIS lockboxes are currently located in 

Phoenix, AZ and Chicago, IL. 

82 AFM, Ch. 21.2(h)(1)(C) (2013); http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-3513.html#0-0-0-387 

(accessed May 20, 2013). 

83 Ombudsman staff compiled notes during a USCIS Stakeholder Engagement, including a public Question and Answer session. See generally USCIS 

Webpage, “Approval of Petitions and Applications after the Death of a Qualifying Relative” (Feb. 7, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=33189acaf228c310VgnVCM100000082ca60a 

RCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD (accessed May 20, 2013). 

Citizenship and Immigration Services Ombudsman 20 
 

 

Family and Children 

As set forth in two far-reaching recommendations issued by the Ombudsman this reporting 

year, USCIS has the opportunity to improve its processing of applications and petitions filed 

by surviving relatives, as well as spouses and children seeking to remove the conditions placed 

upon their permanent residence. Also, the agency implemented the Provisional Unlawful 

Presence Waiver Program, which will greatly reduce periods of family separation, and in a 

manner consistent with the Ombudsman’s June 2010 recommendations announced centralized 

processing of certain waivers of inadmissibility. 

21 Annual Report to Congress – June 2013 
Applications and Petitions 

for Surviving Relatives 

Background 

On October 28, 2009, Congress enacted INA section 

204(l) to protect certain family and employment-based 

beneficiaries following the death of a qualifying relative.84 

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; 

• Individuals admitted as derivative “T” or “U” 

 nonimmigrants; and 

• Derivative asylees. 

Prior to the enactment of section 204(l), only widow and 

widowers of U.S. citizens could continue to seek immigration 

benefits after the death of the qualifying relative.85 

On December 16, 2010 – approximately 14 months after 

INA section 204(l) became law – USCIS issued a policy 

memorandum titled, “Approval of Petitions and Applications 

after the Death of the Qualifying Relative under new 

84 The DHS Appropriations Act of 2010, Pub. L. No. 111-83, created INA § 204(l) and added a new list of surviving relatives who may continue to seek 

immigration benefits after the death of a qualifying relative. See Pub. L. No. 111-83,Title V, § 568(d).
 

85 The pre-existing legal provision which provided relief to widows and widowers of U.S. citizens at INA § 201(b)(2)(A)(i) was revised in 


section 568(c)(1) of the DHS Appropriations Act of 2010 by deleting language requiring the beneficiary to have been married to the U.S. citizen 


for two years at the time of the citizen’s death.
 

Citizenship and Immigration Services Ombudsman 22 
 

 

 

 

 

 

 

 

 

 

 

 

Section 204(l) of the Immigration and Nationality Act.”86 

The guidance appears to undermine the purpose and plain 

language of section 204(l) by deeming previously approved 

petitions filed on behalf of covered beneficiaries automatically 

revoked and subject to reinstatement under 8 C.F.R. section 

205.1(a)(3)(iii)(C)(2). 

Congress enacted INA section 204(l) on October 28, 2009, 

to allow additional classes of surviving relatives to continue 

to seek immigration benefits. The automatic revocation of 

family-based petitions upon death of the petitioning relative 

was established by USCIS regulation, 8 C.F.R. section 205.1(a) 

(3)(C). The only remedy for automatic revocation is a 

discretionary humanitarian reinstatement that a family-based 

beneficiary may request under 8 C.F.R. section 205.1(a)(3) 

(C)(2). These regulations pre-dated the enactment of INA 

section 204(l). 

Following the enactment of the legislation and the 

implementation of the USCIS policy memorandum, 

stakeholders report local and regional USCIS offices do 

not seem to understand INA section 204(l). Other cases 

suggest that some USCIS officers are either unaware of or 

disinclined to follow the agency’s December 16, 2010 

policy memorandum. 

Case Example: An individual filed Form I-485, Application 

to Register Permanent Residence or Adjust Status, with 

evidence of a pending family-based petition on which she 

was a derivative. She provided evidence of coverage under 

section 204(l) and provided a copy of the USCIS policy 

memorandum. At the adjustment interview, the USCIS 

immigration services officer advised the individual that the 

application would be denied and incorrectly instructed that 

she should file a Motion to Reopen with the USCIS service 

center. The adjustment application was denied without 

mention of section 204(l), merely stating that since the 

petitioner had died the petition was terminated. The case 

was submitted to the Ombudsman for case assistance and 

proper application of section 204(l). 

Recommendations 

On November 26, 2012, the Ombudsman recommended 

that USCIS: 

1) Conduct notice-and-comment rule making to create or 

designate a standard form, establish a receipt protocol 

and describe an adjudication process consistent with the 

plain language of INA section 204(l); 

2) Train USCIS staff to interpret and apply properly INA 

section 204(l) and stop regarding survivor benefit 

requests as a form of discretionary reinstatement; 

3) Publish instructions for applicants and petitioners as to 

the nature and extent of INA section 204(l)’s coverage 

and related benefit request processes; and 

4) Track and monitor the processing of survivor 

 benefit requests. 

USCIS Response 

Following the issuance of the Ombudsman’s recommendation, 

USCIS held two public engagements related to survivor 

benefits. The first took place on February 7, 2013, and was 

titled, “Approval of Petitions and Applications after the Death of a 

Qualifying Relative.” 87 Agency representatives discussed INA 

section 204(l), self-petitions filed by widows/widowers of U.S. 

citizens and the reinstatement regulation.88 They limited their 

comments to family-based applicants who may be eligible 

for relief under section 204(l). In doing so, they did not 

reference or otherwise discuss the December 16, 2010 policy 

memorandum, which is the sole administrative guidance on 

this topic. USCIS did describe the agency’s application of the 

reinstatement process for INA section 204(l) beneficiaries.The 

speakers maintained that USCIS’s authority with respect to INA 

section 204(l) cases is entirely discretionary. 

Starting in November 2012, USCIS added an action code to 

its data system to account for 204(l) reinstatement requests. 

The code does not distinguish between a reinstatement 

request made under INA section 204(l) versus humanitarian 

reinstatement per 8 C.F.R. section 205.1(a)(3)(i)(C). 

The Ombudsman’s recommendation noted that the USCIS 

interpretation affords the revocation and reinstatement 

regulation greater weight than the subsequently enacted 

statute.89 

86 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); http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf (accessed May 

20, 2013). 

87 USCIS Webpage, “Approval of Petitions and Applications after the Death of a Qualifying Relative” (Feb. 7, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=33189acaf228c310VgnVCM100000082ca60a 

RCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD (accessed May 20, 2013). 

88 Id. 

89 Ombudsman Recommendation 55, “Improving the Adjudication of Applications and Petitions Under Section 204(l) of the Immigration and Nationality Act” (Nov. 26, 2012); http://www.dhs.gov/sites/default/files/publications/cisomb-improving-adjudication-under-ina-204l-11262012.pdf 

(accessed May 20, 2013). 

23 Annual Report to Congress – June 2013 
 

 

 

 

 

During a second public engagement on February 26, 2013, 

titled, “Provisional Unlawful Presence Waiver Process,” USCIS 

staff reviewed this new waiver program for immediate 

relatives. In the context of section 204(l), eligibility for a 

provisional waiver may be established through a deceased 

but previously qualifying relative.90 However, USCIS 

speakers indicated that eligible applicants must have a 

living, qualifying relative.91 This representation is at odds 

with the statute, as well as USCIS’s December 16, 2010 

policy memorandum, which correctly states that waivers 

of inadmissibility may be granted even if the qualifying 

relationship that would have supported the waiver ended 

through death.92 

USCIS responded to the Ombudsman’s recommendations 

on June 3, 2013.93 The Ombudsman is unable to fully 

review in this Report USCIS’s response which was due 

February 26, 2013. 

Ongoing Concerns 

Stakeholders continue to report the misapplication of 

INA section 204(l) at local and regional USCIS offices. As 

stated earlier, USCIS staff, in accordance with the agency’s 

December 16, 2010 policy memorandum, subject previously 

approved petitions under section 204(l) to automatic 

revocation. Thus, they require survivors to undergo the 

long and difficult process of requesting humanitarian 

reinstatement. USCIS’s stated position with regards to 

approved petitions undermines the plain language of INA 

section 204(l). 

Petitions to Remove Conditions 

on Residence 

Background 

On February 28, 2013, following almost two years of 

research and outreach to concerned stakeholders, the 

Ombudsman published recommendations aimed at 

improving USCIS’s processing of Form I-751, Petition to 

Remove Conditions on Residence.94 Key problems identified in 

the recommendation include: ineffective notice and barriers 

to securing information, including proof of status; inefficient 

processes and inconsistent adjudications; a lack of sensitivity 

and awareness of legal requirements (especially concerning 

waivers) by some USCIS adjudicators; and inadequate 

electronic systems in use to support the processing of Form 

I-751 petitions. 

Since the passage of INA section 216, the former 

Immigration and Naturalization Service (INS) and USCIS 

have issued more than a dozen guidance documents related 

to this case type. Only two appear on the agency’s public 

website under the topic of “Conditional Residence.”95 

The AFM lacks comprehensive, up-to-date information 

on policies and procedures associated with Form I-751 

adjudications. Petitioners and their representatives find 

it difficult to discern which I-751 guidance remains in 

effect and how to ensure its proper application. USCIS 

adjudicators, in turn, face considerable challenges 

understanding and applying the universe of I-751 policies 

and procedures. When such guidance is misapplied, spouses 

and children seeking immigration benefits and services may 

encounter a range of undue burdens, including placement 

into removal proceedings. 

Case Example: The Ombudsman received a request for 

assistance from an individual in removal proceedings 

who was seeking proof of status after USCIS denied her 

jointly-filed Form I-751. She first appeared at a district 

office in April 2012 to obtain a temporary I-551 stamp 

in her passport so she could work, as the law permits, 

while in proceedings. Following her attorney’s advice, she 

brought to the InfoPass appointment copies of relevant 

agency guidance, including the August 6, 1996 INS 

Memorandum.96 The USCIS officer refused to issue proof 

of status despite the guidance. Repeated contact with the 

district by the Ombudsman eventually resulted in issuance 

of the temporary I-551 stamp in December 2012. 

90 See supra note 84. 

91 Ombudsman Teleconference Recap, “Survivor Benefits under INA § 204(l): A Conversation with USCIS”; http://www.dhs.gov/telecon-recapsurvivor-benefits-under-ina-%C2%A7204l-conversation-uscis (accessed May 20, 2013). 

92 See supra note 84. 

93 USCIS Response to Recommendation 55, (Jun. 3, 2013). 

94 Ombudsman Recommendation 56, “Improving the Process for Removal of Conditions on Residence for Spouses and Children” (Feb. 28, 2013); 

http://www.dhs.gov/publication/improving-process-removal-conditions-residence-spouses-and-children (accessed May 20, 2013). In FY 2012, USCIS 

received 172,786 Form I-751 petitions. Of those, 132,537 were approved at USCIS service centers, 4,514 were denied at the service centers, and 

18,529 were transferred by service centers to local offices for interviews. 

95 USCIS Memorandum, “I-751 Filed Prior to Termination of Marriage” (Apr. 3, 2009) and USCIS Memorandum, “Delegation of Authority to Service 

Center Directors to Adjudicate Form I-829, Petition by Entrepreneur to Remove Conditions; Adjudication of Form N-400, Application for Naturalization 

when a Form I-829 is Still Pending; AFM Update: Chapter 25.2” (Dec. 21, 2006); 

96 INS Memorandum, “Legal Opinion: Status of a conditional permanent resident after denial of the I-751 during pendency of review by EOIR” (Aug. 6, 

1996). 

Citizenship and Immigration Services Ombudsman 24 
 

 

 

 

 

 

 

 

 

 

 

 

Recommendations 

To address difficulties associated with the processing of Form 

I-751 petitions, the Ombudsman recommended that USCIS: 

1) Provide timely, effective and accurate notice to 

petitioner(s) and their attorneys or accredited 

representatives on I-751 receipt, processing and 

adjudication requirements and decisions; 

2) Ensure AFM Chapter 25 is updated, accurate and 

complete, or create a superseding source of consolidated 

information for I-751 adjudications; and 

3) Train USCIS staff to apply the updated AFM or 

superseding guidance with an emphasis on waiver 

standards and procedures. 

USCIS Response 

USCIS’s response to the Ombudsman’s recommendations 

was due on May 28, 2013. 

Ongoing Concerns 

Stakeholders, along with USCIS employees in service centers 

and district offices, have called for remedial action to resolve 

the range of problems related to Form I-751 adjudications 

discussed in the Ombudsman’s recommendations. 

Provisional and Other Waivers 

of Inadmissibility 

Background 

In 1996, Congress enacted what have come to be called the 

“three- and ten-year bars.”97 An individual seeking a waiver 

of either the three- or ten-year bar must demonstrate to 

the satisfaction of the Secretary that refusal of admission 

would result in extreme hardship to a qualifying relative 

as a matter of law and in the exercise of discretion.98 Until 

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

only be sought by applicants who had left the United States 

to apply for an immigrant visa at the DOS consulate abroad. 

This led to lengthy periods of family separation since waiver 

processing took months, if not years, to complete.99 

Many applicants with close family ties in the United States 

have been dissuaded from seeking LPR status due to the 

unlawful presence bars. After residing in the United States 

for many years, others may have traveled abroad for what 

they hoped would be a temporary period, only to have 

encountered prolonged adjudication delays, or been denied a 

waiver request. While remaining abroad, the applicant’s sole 

recourse was to file an appeal with the USCIS Administrative 

Appeals Office (AAO), where, in 2012, processing times for 

this particular application type were as long as 26 months.100 

Even individuals approved for such waivers abroad may 

have been forced to endure separation from relatives for six 

months to one year.101 Under prior waiver procedures, these 

applicants had no choice but to travel overseas to complete 

their application for an immigrant visa.102 

Recommendations 

For many years, stakeholders have reported concerns to the 

Ombudsman about unpredictable and protracted processing 

times and inconsistent adjudication of inadmissibility 

waivers, particularly those filed on Form I-601, Application 

for Waiver of Grounds of Inadmissibility. As a result, on June 

10, 2010, the Ombudsman recommended that USCIS: 

1) Centralize Form I-601 processing; 

2) Allow applicants to concurrently filed Form I-601 and 

 Form I-130, Petition for Alien Relative; 

97 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208. INA § 212 (a)(9)(B)(i)(I) is known commonly as the 

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

which is triggered by one year or more of unlawful presence and a departure from the United States, followed by seeking readmission. 

98 INA § 212(a)(9)(B)(v). A qualifying relative is a U.S. citizen or an LPR spouse or parent of the immigrant seeking a waiver of inadmissibility. 

99 USCIS Webpage, “Transition to Centralized Form I-601 Filing” (May 31, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6ba6cf1cfaf77310VgnVCM100000082ca60aR 

CRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD (accessed May 20, 2013). At the time of the Ombudsman 2010 recommendations, average processing time for referred cases (those not readily approvable upon filing) were 10-12 months. See Ombudsman Recommendation 

45, “Processing of Waivers of Inadmissibility” (June 10, 2010); 

http://testdhsgov.edgesuite.net/xlibrary/assets/cisomb_waivers_of_inadmissibility_recommendation.pdf (accessed Apr. 29, 2013). 

100 USCIS Webpage, “AAO Processing Times” (May 10, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8ff31eeaf28e6210VgnVCM100000082ca60aR 

CRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD (accessed May 20, 2013). AAO published processing times are called current 

when they take six months from date of receipt at the AAO until date of decision. The time period between receipt of the I-601 appeal at the USCIS 

office and receipt at AAO is not recorded in this formula. The I-601 waiver appeals had published processing time of 26 months in March 2012, 

although that was reduced to “current” by March 2013. 

101 See also USCIS Webpage, “USCIS to Centralize Filing and Adjudication for Certain Waivers of Inadmissibility in the United States” (May 23, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchannel=68439c7755cb9010VgnVCM10000045f3 

d6a1RCRD&vgnextoid=8e5b8976a0a77310VgnVCM100000082ca60aRCRD (accessed May 20, 2013). 

102 INA § 245(a) and (c). 

25 Annual Report to Congress – June 2013 
3) Prioritize the finalization of the overseas case 

management system, already under development, to 

ensure accurate statistical reporting on Form I-601, 

to allow processing times to be posted, and to enable 

customers to track a Form I-601 application via the 

“My Case Status” feature on the USCIS website; 

4) Publish clear instructions for customers seeking 

expedited waiver processing; 

5) Increase coordination between the DOS and USCIS 

officers who work with I-601 waivers; and 

6) Allow USCIS employees to request digitized A-Files upon 

receipt of interview schedules.103 

USCIS Response 

USCIS concurred and implemented most of the 

Ombudsman’s recommendations. This section highlights 

these changes, along with new policy initiatives that promise 

to improve consistency and minimize delays for applicants 

and their families. 

Centralized U.S. Filing of Overseas Immigrant Waivers. 

Effective June 4, 2012, USCIS began accepting through 

its Phoenix Lockbox waivers of inadmissibility filed 

by applicants overseas, and shifted the adjudication of 

such requests to the NSC.104 This centralized filing and 

adjudication in the United States applies to all Forms I-601, 

as well as I-212, Application for Permission to Reapply for 

Admission into the United States After Deportation or Removal, 

including related motions and appeals. USCIS announced 

in its May 31, 2012 Public Engagement, “Transition to 

Centralized Form I-601 Filing,” that the agency hoped to 

adjudicate these waivers within three months of receipt.105 

Provisional Unlawful Presence Waiver Process. On January 

9, 2012, USCIS announced its plan to adjudicate provisional 

waivers of unlawful presence for certain immediate relatives 

living in the United States.106 After publishing proposed 

and final regulations, the agency began implementing this 

new initiative on March 4, 2013.107 Stakeholders hailed 

this critical to preserving family unity. Provisional unlawful 

presence waivers are available to immediate relatives who 

can demonstrate extreme hardship to a U.S. citizen spouse or 

parent. If any grounds of inadmissibility applies other than 

INA section 212(a)(9)(B), the program is not available. 

Ongoing Concerns 

Many commenting on the proposed regulation have urged 

USCIS to extend provisional waiver coverage to family 

preference categories.108 Individuals in LPR status with strong 

family ties in the United States cannot seek a provisional 

waiver, and continue to face extended separations related 

to processing abroad. USCIS has stated that the agency will 

consider expansion of the program after assessing its progress 

and operational impacts.109 

In addition, those offering feedback on the proposed 

regulation requested that the government reconsider 

its decision precluding motions to reopen and appeals 

of provisional waiver decisions.110 Currently, only the 

government may reverse a provisional waiver denial decision 

by reopening the matter sua sponte. Alternatively, the applicant 

may file an entirely new request with an additional fee.111 

USCIS hosted 24 public engagements and provided 

useful educational materials related to the Provisional 

Unlawful Presence Waiver Process.112 In doing so, the 

agency successfully distinguished this initiative from the 

centralization of overseas waivers in the United States. 

Conclusion 

The Ombudsman is committed to working with USCIS to 

improve processes that support and promote family unity. 

Over the next year, the Ombudsman will continue to monitor 

USCIS’s handling of cases filed under INA section 204(l). 

Centralized waiver filings and adjudications in the United 

States, along with the Provisional Unlawful Presence Waiver 

Process, offer examples of meaningful programs. As such, 

both initiatives present creative and effective solutions to 

longstanding challenges in family immigration. 

103 Ombudsman Recommendation 45, “Processing of Waivers of Inadmissibility” (Jun. 10, 2010); http://www.dhs.gov/ombudsman-recommendationprocessing-waivers-inadmissibility (accessed Apr. 17, 2013).
 

104USCIS lockboxes are receipting centers for USCIS applications that handle fees and route applications.They are run by contractor personnel but have
 

a limited number of USCIS personnel attached to them to make decisions on fee waivers and other issues.The USCIS lockboxes are currently located in 


Phoenix, AZ and Chicago, IL.
 

105 Id. 

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

107 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 535-575 (Jan. 3, 2013) and Instructions USCIS 


Form I-601A, Application for Provisional Unlawful Presence Waiver; http://www.uscis.gov/files/form/i-601ainstr.pdf (accessed Apr. 22, 2013).
 

108 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 535, 542 (Jan. 3, 2013). Instructions USCIS 


Form I-601A, Application for Provisional Unlawful Presence Waiver.
 

109 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 535 (Jan. 3, 2013).
 

110 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed Reg. 535, 551-552 (Jan. 3, 2013).
 

111 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 535 (Jan. 3, 2013).
 

112 Information provided by USCIS to the Ombudsman (Apr. 24, 2013).
 

Citizenship and Immigration Services Ombudsman 26 
Employment 

U.S. immigration policy fosters economic growth, responds to labor market needs, and improves 

U.S. global competitiveness. As Secretary Napolitano stated, “The United States must continue 

to attract the best and brightest from around the world to invest their talents, skills, and ideas 

to grow our economy and create American jobs.”113 During this reporting period, USCIS 

initiatives sought to address concerns with Requests for Evidence, and the agency published new 

policy memoranda for the EB-5 Immigrant Investor Program. Concerns remain regarding the 

quality and consistency of employment-based adjudications. 

27 Annual Report to Congress – June 2013 
 

 

 

Requests for Evidence 

Background 

In prior Reports, the Ombudsman has discussed concerns 

raised by individuals and employers regarding the quality 

and consistency of adjudications, and what they characterize 

as inappropriate and unduly burdensome RFEs, particularly 

in employment cases.114 

USCIS Request for Evidence Project. On April 12, 2010, 

Director Mayorkas introduced the Request for Evidence 

113 DHS Webpage, “Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation” (Aug. 2, 2011); 

http://www.dhs.gov/news/2011/08/02/secretary-napolitano-announces-initiatives-promote-startup-enterprises-and-spur-job (Aug. 2, 2011). 

114 Ombudsman Annual Report 2012 (Jun. 2012), pp. 16-18; http://www.dhs.gov/xlibrary/assets/cisomb-2012-annualreport.pdf, and Ombudsman 

Annual Report 2011 (Jun. 2011), pp. 23-29; http://www.dhs.gov/xlibrary/assets/cisomb-annual-report-2011.pdf. 

115 USCIS Webpage, “Review and Revision of Request for Evidence Templates”; 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=95e92d40ee989210VgnVCM100000082ca60 

aRCRD&vgnextchannel=95e92d40ee989210VgnVCM100000082ca60aRCRD (accessed May 20, 2013). The Service Center Operations Directorate 

(SCOPS) instituted the RFE Project email box (scopsrfe@uscis.dhs.gov) which allows stakeholders to bring what they feel are erroneous RFEs to 

SCOPS’s attention. 

Citizenship and Immigration Services Ombudsman 28 

Project, an initiative that engages stakeholders in the review 

and revision of service center RFE templates to ensure 

they are: relevant to the classification being adjudicated; 

tailored to individual cases; and concise and clear.115 Some 

stakeholders have commented positively on the project, 

reporting that the quality of RFEs appear to be improving. 

For petitioners, the RFE templates act as a guide to preparing 

higher quality initial submissions, as the templates contain a 

list of supporting documents the agency typically expects to 

be provided with for various petition types. 
 

 

 

 

 

 

 

 

 

 

Thus far, USCIS has reviewed and posted for public comment 

RFE templates for the following immigrant categories: 

Outstanding Professor and Researcher, and Multinational 

Executive and Manager; and nonimmigrant categories: 

F and M Student, J Exchange Visitor, L-1 Intracompany 

Transferee (Blanket Petition and L-1A Manager or Executive), 

and O, Extraordinary Ability or Achievement.116 USCIS has 

not issued new RFE templates for two key nonimmigrant 

employment categories: H-1B Specialty Occupations and 

L-1B Intracompany Transferees with Specialized Knowledge. 

Validation Instrument for Business Enterprises (VIBE). 

In February 2011, USCIS deployed VIBE at all four service 

centers to enhance the adjudication of employment-based 

petitions.117 VIBE uses commercially available data from 

an independent information provider, currently Dun & 

Bradstreet, to validate basic information about petitioning 

companies or organizations. USCIS aims to use VIBE to 

reduce the need for companies and organizations to submit 

identical paper documentation with each petition to 

establish their current level of business operations. Some 

stakeholders find that contrary to VIBE’s express purpose they 

continue to have to submit paper documentation with the 

initial filing and to receive RFEs. USCIS is unable to track 

VIBE-initiated RFEs at this time. 

Beginning December 2012, a new VIBE release added 

enhancements to the system allowing designated service 

center personnel to add notes pertaining to a specific 

petitioner in the VIBE system. Comments must be vetted 

and approved by the VIBE team. USCIS officers are not 

required to request that comments be added in VIBE, but are 

encouraged to submit comments for vetting and approval. 

USCIS officers are required to check VIBE if more than 60 

days have passed since the last VIBE query was done. They 

are strongly encouraged to review the filing history in VIBE 

and the USCIS case management system before making a 

final adjudication. 

Entrepreneurs in Residence Initiative (EIR). In October 

2011, USCIS launched the EIR initiative to “harness 

industry expertise from the public and private sectors that 

will increase the job creation potential of employmentbased and high-skilled visa categories.”118 Through the EIR 

initiative, USCIS enlisted experts from the private sector 

to advise on policies and practices related to “immigrant 

investors, entrepreneurs and workers with specialized skills, 

knowledge, or abilities.”119 The EIR initiative was launched 

as “part of a wider White House and DHS effort to grow the 

U.S. economy and create American jobs.”120 

In November 2012, USCIS unveiled the Entrepreneur 

Pathways Web portal, offering immigration resources to 

entrepreneurs.121 USCIS lists EIR accomplishments on its 

website: hosting a workshop for USCIS employment-based 

immigration officers that focuses on entrepreneurs and 

the environment for startup companies and early-stage 

innovations; training a team of specialized immigration 

officers to handle entrepreneur, startup nonimmigrant 

visa cases; and modifying RFE templates for certain 

nonimmigrant visa categories to incorporate new sources of 

evidence related to entrepreneurs and startup companies into 

the adjudicative process.122 

On May 8, 2013, Director Mayorkas released a summary of 

EIR progress over the past year. The Director also announced 

the expansion of EIR to cover the areas of performing arts, 

116 Id. 

117 See USCIS Webpage, “Validation Instrument for Business Enterprises (VIBE) Program” (Jan. 24, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=521d735652f9d210VgnVCM100000082ca60 

aRCRD&vgnextchannel=521d735652f9d210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

118 USCIS Webpage, “USCIS Announces ‘Entrepreneurs in Residence Initiative” (Oct. 11, 2011); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bd537158910e2310VgnVCM100000082ca60 

aRCRD (accessed May 21, 2013); see also USCIS Webpage, “Entrepreneurs in Residence (EIR)” (Mar. 8, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=d44eee876cb85310VgnVCM100000082ca60a 

RCRD&vgnextchannel=d44eee876cb85310VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

119 USCIS Webpage, “USCIS Announces ‘Entrepreneurs in Residence Initiative” (Oct. 11, 2011); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bd537158910e2310VgnVCM100000082ca60 

aRCRD (accessed May 21, 2013). 

120 USCIS Webpage, “The Entrepreneur in Residence (EIR) Initiative”; 

http://www.uscis.gov/portal/site/uscis/menuitem.749cabd81f5ffc8fba713d10526e0aa0/?vgnextoid=6c89760c124a7310VgnVCM10000025e6a00a 

RCRD&vgnextchannel=6c89760c124a7310VgnVCM10000025e6a00aRCRD (accessed May 21, 2013). 

121 USCIS Webpage, “Entrepreneur Pathways: A Resource for Immigrant Entrepreneurs”; http://www.uscis.gov/portal/site/uscis/eir (accessed May 21, 

2013). 

122 Supra note 120. 

29 Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

 

health care and information technology.123 The Ombudsman 

has observed EIR events but notes that it is difficult to 

measure the impact of the EIR initiative on the quality and 

consistency of USCIS employment-based adjudications. 

Adjudications and Supervisory Review. The USCIS 

CSC requires 100 percent supervisory review of all Form 

I-129, Nonimmigrant Worker Petition, Notices of Intent to 

Deny (NOIDs) and denial decisions prior to issuance. The 

VSC requires 100 percent supervisory review of all Form 

I-129 denial decisions prior to issuance. At both centers, 

supervisors conduct post-decision reviews through random 

monthly audits. USCIS informed the Ombudsman that both 

service centers have implemented a periodic qualitative 

review of RFEs and other adjudication decisions to identify 

and address consistency issues, trends, and other factors 

related to performance and training needs. 

Adjudications Data. Below are RFE rates for select 

employment-based categories. The quality of RFEs is not 

subject to numerical analysis and is more difficult to assess. 

See Figure 7 on next page. Data include RFE statistics from 

FY 1995 through FY 2012 for the VSC and CSC for H-1B, 

L-1A and L-1B nonimmigrant visa petition categories. 

Starting in 2007, the data show an increase in RFE rates for 

both L-1 nonimmigrant categories. 

Ongoing Concerns 

Stakeholders continue to express concerns with the 

frequency and quality of RFEs. As discussed in previous 

Reports,124 employers complain of receiving RFEs that 

indicate a fundamental misunderstanding by USCIS of the 

employer’s business, despite the submission of industrystandard documents to support petitions. Stakeholders 

also question the need for detailed financial or operational 

information from companies that have a long history of 

previously approved petitions. Others assert that they 

received RFEs seeking documents that were provided with 

original submissions. Additional stakeholder concerns 

pertaining specifically to USCIS policy and practice in the 

H-1B and L-1 categories are discussed below. 

H-1B Specialty Occupation and 

L-1 Intracompany Transferees 

Recommendations 

In earlier Reports, the Ombudsman described problems 

related to H-1B Specialty Occupation and L-1 Intracompany 

Transferee Programs.125 Stakeholder concerns focused on 

USCIS policies that appear to subject small and start-up 

companies to heightened scrutiny. These same concerns 

were expressed to the Ombudsman this reporting period. 

USCIS Policy Guidance: H-1B Specialty Occupations. 

On January 8, 2010, USCIS issued a guidance memorandum 

titled, “Determining Employer-Employee Relationship for 

Adjudication of H-1B Petitions, Including Third-Party Site 

Placements.” 126 The agency instructed adjudicators to 

consider carefully petitions to determine whether there is 

a legitimate “employer-employee relationship.” It further 

authorized the use of RFEs if the initial submission failed 

to establish that the petitioner satisfies the “common law” 

element of control over the proposed beneficiary. The 

memorandum also discussed the use of RFEs for filings 

by entrepreneurs that are characterized as “Self-Employed 

Beneficiaries.”127 While there is no readily available data 

that measures the impact that this memorandum has had 

on H-1B adjudications, it serves as another basis for issuing 

RFEs. 

On May 18, 2012, USCIS released to the public an internal 

2008 policy memorandum titled, “H-1B Anti-Fraud 

Initiatives—Internal Guidance and Procedures in Response to 

Findings Revealed in H-1B Benefit Fraud and Compliance 

Assessment.” 128 The “H-1B Anti-Fraud Memorandum” was 

issued shortly after USCIS completed a Fraud Detection and 

National Security (FDNS) Directorate H-1B Benefit Fraud & 

Compliance Assessment (BFCA).129 The memorandum states: 

123 USCIS Webpage, “USCIS to Expand Entrepreneurs in Residence Initiative” (May 8, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2b6be424ac48e310VgnVCM100000082ca60a 

RCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed May 21, 2013); See also “Entrepreneurs in Residence: U.S. 

Citizenship and Immigration Services Initiative Summary” (May 2013); http://www.uscis.gov/USCIS/About%20Us/EIR/EntrepreneursinResidence.pdf 

(accessed May 21, 2013). 

124 Ombudsman Annual Report 2011, pp. 26-29; http://www.dhs.gov/xlibrary/assets/cisomb-annual-report-2011.pdf; Ombudsman Annual Report 

2010, pp. 36-48; http://www.dhs.gov/xlibrary/assets/cisomb_2010_annual_report_to_congress.pdf. 

125 Id. 

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

Placements” (Jan. 8, 2010); http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf 

(accessed May 8, 2013). 

127 Id, p. 5. 

128 USCIS 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). 

129 See Ombudsman Annual Report 2010, p. 43. 

Citizenship and Immigration Services Ombudsman 30 
FIGURE 7: H-1B, L-1A, AND L-1B REQUESTS FOR EVIDENCE RATES 

H-1B RFE RATE 60 RFE % OF TOTAL RECEIPTS

50
 

40
 

30
 

20
 

10
 

0
 

&DOLIRUQLD6HUYLFH&HQWHU&6& 9HUPRQW6HUYLFH&HQWHU96&

95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12
 

FISCAL YEAR 

L-1A RFE RATE 50
 RFE % OF TOTAL RECEIPTS

&DOLIRUQLD6HUYLFH&HQWHU&6& 9HUPRQW6HUYLFH&HQWHU96&

95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12
 

40
 

30
 

20
 

10
 

0
 

FISCAL YEAR 

L-1B RFE RATE 60
 RFE % OF TOTAL RECEIPTS 

50
 

40
 

30
 

20
 

10
 

0
 

&DOLIRUQLD6HUYLFH&HQWHU&6& 9HUPRQW6HUYLFH&HQWHU96&

95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12
 

FISCAL YEAR 

6RXUFH,QIRUPDWLRQSURYLGHGE\86&,6WRWKH2PEXGVPDQ1RY-DQ0D\$SU

31 Annual Report to Congress – June 2013 
The statistical findings of the H-1B BFCA revealed that 

petitions which had one or more of the following 

attributes were more likely to have engaged in fraud 

or committed technical violation(s). These petitioner 

attributes or fraud indicators include: 

• Petitioners with a gross annual income of less 

 than $10 million; 

• Petitioners which employ 25 employees or less; 

 or 

• Petitioners whose business was established 

 within the last 10 years. 

No single indicator or combination of these indicators 

is necessarily determinative of the merits of an H-1B 

petition. However, an [adjudicating officer] who 

identifies a petitioner that has two or more of these 

indicators (the “10/25/10” formula for ease of 

reference) should review the H-1B petition with an 

awareness of the heightened possibility of fraud and/ 

or technical violation ... .130 (emphasis in original) 

The H-1B Anti-Fraud Memorandum provides additional 

instructions to adjudicators on what they should focus on 

as they scrutinize petitions for the presence of fraudulent, 

inconsistent or questionable evidence, and when they should 

refer cases to the agency’s fraud unit. 

USCIS Policy Guidance: L-1B Petitions. In 2010, the 

Ombudsman recommended that USCIS develop new L-1B 

regulations under the Administrative Procedures Act (APA) 

to clarify the meaning of “specialized knowledge.”131 

USCIS rejected this recommendation, stating: 

USCIS believes that its current approach, which 

includes issuance in the near future of one or a series 

of L-1B precedent decisions, in combination with an 

updated “specialized knowledge” memorandum and 

a corresponding revision of Chapter 32 of the AFM, is 

sufficient, without a notice and comment process, to 

provide guidance regarding the L-1B classification.132 

Six months later, the agency agreed to issue new L-1B 

guidance.133 To date, USCIS has neither published L-1B 

precedent decisions nor implemented such guidance. 

Meanwhile, business stakeholders continue to assert, and the 

RFE data illustrate, that in the absence of such guidance, L-1B 

petition adjudications remain subject to high RFE rates. 

Ongoing Concerns 

Recognition of Modern Business Practices. Stakeholders 

expressed frustration that, in their view, USCIS often fails to 

recognize modern business practices. For example, USCIS 

at times issues RFEs and denials citing the U.S. Department 

of Labor’s Occupational Outlook Handbook,134 finding that 

the proposed employment does not qualify as a specialty 

occupation. Such opportunities often are for a Computer 

Systems Analyst and Marketing Analyst, which are common 

professional positions. Stakeholders also report problems 

with USCIS accommodating evolving business practices, 

including the use of virtual offices, managers of contract 

employees, and new organizational structures that do not 

have traditional management tiers and functions. 

Business Judgment. Stakeholders stated that, in some 

cases, USCIS inappropriately scrutinizes and substitutes its 

own judgment pertaining to the business needs of the 

petitioner – whether the company legitimately requires 

the executive, manager, or specialty occupation worker 

sponsored in the petition. 

New Office L-1 Adjudications. Stakeholders continued 

to cite USCIS adjudications that delay or prevent the 

transfer of executives and managers to open offices or to 

expand businesses in the United States. In these cases, the 

petitioning U.S. company will typically provide a business 

plan, a proposed organizational chart that identifies current 

and prospective personnel, and documents showing 

acquisition of commercial space and funding to initiate its 

business. Petitioners state the success of the business plan 

depends on the transfer of the executive or manager to the 

United States who is expected to hire the company’s initial 

staff. Some denials in these cases state that the petitioner has 

not demonstrated that the company is sufficiently developed 

to require the presence of an executive or manager. USCIS 

asserts that, due to the size of the company, it appears that 

the proposed beneficiary would be serving as a first-line 

supervisor, and not as an executive or manager. Such denials 

may overlook regulations that permit “new office” situations 

for a limited period of one-year to allow the business to 

become operational.135 

130 Supra note 128, p. 2.
 

131 Administrative Procedure Act, Pub. L. No. 79-404; 5 U.S.C. § 551 (1946).
 

132 USCIS 2010 Annual Report Response, p. 9.
 

133 USCIS Teleconference, “L-1B Specialized Knowledge” (June 14, 2011);
 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d36c7faca91af210VgnVCM100000082ca60aR 

CRD (accessed May 12, 2013). 

134 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2012-13 Ed.; http://www.bls.gov/ooh/about/projectionsoverview.htm (accessed Apr. 30, 2013). 

135 8 C.F.R. § 214.2(l)(3)(vi) (2009). 

Citizenship and Immigration Services Ombudsman 32 
 

 

 

 

   

EB-5 Immigrant 

Investor Program 

Background 

In 1990, Congress established the fifth employment-based 

(EB-5) preference category for immigrants seeking to reside 

in the United States to engage in commercial enterprises 

that create jobs.136 Congress allocated 10,000 visas annually 

under this category for qualified foreign entrepreneurs, and 

their spouses and minor children.137 To be eligible for EB-5 

status, a foreign entrepreneur must invest a minimum of 

$500,000 in an enterprise that will create “directly” 

10 full-time positions for U.S. workers over a two-year 

period.138 

Shortly after launching the EB-5 preference category, 

Congress in 1992 authorized a pilot program to encourage 

concentration of EB-5 capital in projects likely to have 

greater regional and national impacts.139 The pilot program 

is especially attractive to investors because they are permitted 

to demonstrate through “reasonable methodologies” that 

their investment will create jobs directly or indirectly.

140 

Today, nearly 96 percent of all EB-5 investments flow 

through the pilot program,141 which is commonly called the 

Regional Center Pilot Program. Applications for regional 

center designation may be filed on behalf of a state or local 

governmental agency, a partnership, or any other existing 

business entity established in the United States and its 

territories.142 Regional Center applications are filed on 

a Form I-924, Application For Regional Center Under the 

Immigrant Investor Pilot Program. Below is the filing data for 

the past three years for Form I-924. See Figure 8. 

FIGURE 8: FILING DATA oN FoRM I -924, APPLICATIoN FoR REGIoNAL CENTER UNDER 

THE IMMIGRANT PILoT PRoGRAM 

	 			 							

	 								 			 			

			 	 								

 - - - 

	 	

APPLICATIoNs 

300

250

200

150

100

50

0

I-924 Receipts I-924 Approvals I-924 Denials

2012 2011 2010

FIsCAL YEAR 

YEAR I 924 RECEIPTs I 924 APPRovALs I 924 DENIALs RFE RATE 

FY2012: 240 35 63 75%

FY2011: 278 123 58 56%

FY2010: * 152 8 41 0

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

Source: USCIS, “U.S. Citizenship and Immigration Services, Form I-526, Immigrant Petition by Alien Entrepreneur and Form 

I-829, Petition by Entrepreneur to Remove Conditions Service-wide Receipts, Approvals, Denials, Fiscal Year(s): 2005 - 2012”
	

http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employmentbased/I526_I924_I829_performancedata_qtr43.pdf (accessed Apr. 11, 2013).
	

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

137 INA § 203(b)(5)(A). 

138 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% of the national average rate).  Under 8 C.F.R. § 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. 

33 Annual Report to Congress – June 2013 
 

APPLICATIONS 



















  

FISCAL YEAR 

,5HFHLSWV ,$SSURYDOV ,'HQLDOV

YEAR I-526 RECEIPTS I-526 APPROVALS I-526 DENIALS RFE RATE 

)<    

)<    

)<    

The individual immigrant investor begins the EB-5 

process by filing Form I-526, Immigrant Petition by Alien 

Entrepreneur. If the petition is approved and the investor 

resides abroad, the investor must seek the issuance of an 

EB-5 visa through a DOS consular post. From FY 2010 to 

2012, USCIS received nearly 300% more Form I-526 filings. 

Also, USCIS data show a spike in the issuance of RFEs, which 

reached 72% in FY 2011, then decreased to 44% in FY 

2012. See Figure 9. 

FIGURE 9: FORM I-526, IMMIGRANT PETITION BY ALIEN ENTREPRENEUR RECEIPTS 

6RXUFH86&,6 ́86&LWL]HQVKLSDQG,PPLJUDWLRQ6HUYLFHV)RUP,,PPLJUDQW3HWLWLRQE\$OLHQ(QWUHSUHQHXUDQG

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(PSOR\PHQWEDVHG,B,B,BSHUIRUPDQFHGDWDBTWUSGIDFFHVVHG$SU5)(GDWDH[WUDFWHGIURPSULRU

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IURP3UHYLRXV(QJDJHPHQWVE\7RSLF-DQXDU\(%SUHVHQWDWLRQ),1$/SGIDQGLQIRUPDWLRQ

SURYLGHGE\86&,6WRWKH2PEXGVPDQ$SU

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

140 Id. 

141 U.S. Department of State Visa Office Report, “Table 5 (Part 3): Immigrant Visas Issued and Adjustment of Status Subject to Numerical Limitations, FY 

2012” (n.d.); http://www.travel.state.gov/pdf/FY12AnnualReport-TableV-PartIII.pdf (accessed Apr. 3, 2013). 

142 USCIS Webpage, “Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, Instructions”; 

http://www.uscis.gov/files/form/i-924instr.pdf (accessed May 20, 2013). 

Citizenship and Immigration Services Ombudsman 34 
 

    

USCIS DESIGNATED

REGIONAL CENTERS 













EB-5 VISAS ISSUED



















    

FISCAL YEAR 

FISCAL YEAR 

(%9LVDV,VVXHG 86&,6'HVLJQDWHG5HJLRQDO&HQWHUV

FISCAL YEAR EB-5 VISAS ISSUED* USCIS DESIGNATED REGIONAL CENTERS** 

  

  

  

  

  

FIGURE 10: EB-5 IMMIGRANT INVESTOR PROGRAM VISA DEMAND 


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35 Annual Report to Congress – June 2013 
 

 

 

 

 

With a valid EB-5 visa, the immigrant investor and any 

approved dependents may enter the United States as 

conditional permanent residents with authorization to 

remain for two years. Ninety days prior to the second 

anniversary of such entry or admission, the immigrant 

investor is required to file Form I-829, Petition by 

Entrepreneur to Remove Conditions. USCIS’s approval of the 

Form I-829 accords the immigrant investor and any qualified 

dependents LPR status. 

When the Ombudsman issued its “Employment Creation 

Immigrant Visa (EB-5) Program Recommendations” on March 

18, 2009, usage of this visa category had been low, with 

fewer than 1,000 visas issued annually over the 10-year 

period from 1998 to 2007.143 Recent data show a dramatic 

increase in issuance of EB-5 visas and designation of regional 

centers. From 2011 to 2012, there was a 265% increase in 

EB-5 visa usage. See Figure 10. 

On December 3, 2012, USCIS announced in a stakeholder 

engagement the transfer of EB-5 adjudications from the 

CSC to Washington, D.C. by mid-2013.144 Approximately 

two weeks later, on December 20, 2012, USCIS issued a 

guidance memorandum addressing the “tenant-occupancy” 

economic methodology used by many regional centers to 

satisfy job creation requirements.145 On February 14, 2013, 

USCIS issued a third draft of a proposed consolidated EB-5 

Adjudication Policy Memorandum for public comment.146 

Tenant-Occupancy. Generally, the tenant-occupancy 

methodology seeks credit for job creation traced to the 

independent tenant businesses that lease space in buildings 

developed with EB-5 funding. Many regional center projects 

and individual EB-5 investors relied on this job creation 

methodology in past years, resulting in project and petition 

approvals. 

In early FY 2012, USCIS began to question EB-5 filings that 

relied on a tenant-occupancy methodology. The agency 

scrutinizes those job models to ensure that petitioners are 

not counting as new full-time positions existing jobs that 

are merely relocated as tenant-employers move operations 

from one site to another. In January 23, 2012, USCIS 

acknowledged that it had placed an adjudication hold on 

certain unspecified EB-5 filings.147 On February 17, 2012, 

USCIS announced that it was “moving forward” with the 

adjudication of tenant-occupancy related cases, and would 

be issuing RFEs to “certain applicants and petitioners to 

address any questions or issues ... about the economic 

methodologies employed in their specific cases.”148 During 

the remainder of 2012, USCIS issued numerous RFEs 

related to the tenant-occupancy methodology, and in 

some cases, second and third RFEs seeking clarification of 

earlier responses. On December 20, 2012, USCIS issued a 

brief “Operational Guidance” memorandum setting out the 

principles for evaluating whether “a reasonable causal link 

[exists] between the EB-5 enterprise and the job creation 

that would allow for the attribution of the tenant jobs to the 

EB-5 enterprise.”149 

143 See DHS Office of Immigration Statistics 2007, “Yearbook of Immigration Statistics:Table 6” (Sept. 2008); http://www.dhs.gov/yearbookimmigration-statistics-2007-3; DHS Office of Immigration Statistics 2012 “Yearbook of Immigration Statistics:Table 6” (Mar. 2013); 

http://www.dhs.gov/yearbook-immigration-statistics-2012-legal-permanent-residents (accessed Apr. 30, 2013). 

144 USCIS Webpage, “A Conversation with Director Mayorkas – EB-5 Immigrant Investor Program” (Dec. 4, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1eecc0a215a1b310VgnVCM100000082ca60a 

RCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD (accessed Apr. 30, 2013). 

145 USCIS Guidance Memorandum, “Operational Guidance for EB-5 Cases Involving Tenant-Occupancy” (Dec. 20, 2012); 

www.uscis.gov/USCIS/Laws/Memoranda/Interim%20EB-5%20Tenant-Occupancy%20GM.pdf (accessed Mar. 19, 2013). 

146 USCIS Draft Policy Memorandum, “EB-Adjudications Policy” (n.d.); 

www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/drafteb5adjudication.pdf (accessed Mar. 

19, 2013). 

147 USCIS Public Engagement, “EB-5 Immigration Investor Program Stakeholder Meeting” (Jan. 23, 2012); 

http://www.uscis.gov/USCIS/Outreach/Notes%20from%20Previous%20Engagements/Notes%20from%20Previous%20Engagements%20by%20Topic/ 

January%20EB-5%20presentation%20FINAL.pdf (accessed May 21, 2013). 

148 USCIS Office of Public Engagement: EB-5 Tenant Occupancy Message; http://content.govdelivery.com/bulletins/gd/USDHSCIS-2f4c06 (accessed May 

21, 2013). 

149 Supra note 145. 

Citizenship and Immigration Services Ombudsman 36 
 

 

 

 

 

 

Additionally, the proposed policy memorandum also 

addresses a number of other issues, including: (1) when the 

agency will afford deference to prior adjudications involving 

the same project; and (2) the agency’s presumption that a 

“reasonable time” to satisfy the job creation requirement 

may not exceed one year, if this issue remains unresolved 

when the investor files the petition to remove conditions. 

Ongoing Concerns 

The Ombudsman continues to work to resolve individual 

EB-5 cases, review relevant policies and adjudications, and 

elevate stakeholder concerns, as appropriate. 

At the close of this reporting period, the Ombudsman had 

received 441 requests for EB-5 case assistance, representing 

approximately 10 percent of this year’s casework. The vast 

majority of these inquiries came from investors and regional 

centers’ applicants whose cases had been pending past 

posted processing times. According to USCIS’s online “My 

Case Status” tool, as of February 28, 2013, there were 6,025 

Form I-526 petitions pending with an average processing 

time of 11.7 months.153 Based on this data and the program 

requirements, these petitions represent a potential $3 billion 

and 60,000 new full-time jobs in the United States awaiting 

USCIS action. 

Case Example: During the reporting period, the 

Ombudsman received an inquiry regarding more than 

100 Form I-526 petitions associated with a large urban 

redevelopment project. Although USCIS previously 

approved this regional center project, the immigrant 

investor petitions remained pending for up to 212 days 

past the processing time goal of five months.154 These 

delays placed the project at risk of failure, according 

to counsel for the regional center. Soon after the 

Ombudsman brought these cases to USCIS’s attention, 

the agency began issuing decisions. 

150 Supra note 146, p. 23. 

151 USCIS Webpage, “A Work in Progress:Towards a New Draft Policy Memorandum Guiding EB-5 Adjudications” (Nov. 9, 2011);
 

(http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/EB_5_Adjudications_Policy3.pdf) 


(accessed May 21, 2013); USCIS Webpage, “Message From The Director: Revised Draft Policy Memorandum Guiding EB-5 Adjudications”
 

(Jan. 11,2012);
 

(http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/EB5_coverandmemo_2ndpost.pdf) 


(accessed May 21, 2013). See USCIS Memorandum, “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and Form I-829 Petitions;
 

Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2” pp. 5, 19-20 (Dec. 11 2009);
 

http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf (accessed May 21, 2013).
 

152 Supra note 146, p. 23. 

153 USCIS Webpage, “National Processing Volumes and Trends: Form I-526, California Service Center” (Feb. 2013); 

http://dashboard.uscis.gov/index.cfm?formtype=18&office=2&charttype=2 (accessed May 21, 2013); USCIS Webpage, “USCIS Processing Time 

Information” (n.d.); https://egov.uscis.gov/cris/processTimesDisplayInit.do;jsessionid=bach8S4s9cvN_7pAO2i7t (accessed May 21, 2013). 

154 USCIS EB-5 Public Engagement, “PowerPoint Presentation,” p. 12 (Dec. 16, 2010); 

http://www.uscis.gov/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2010/December%202010/eb-5-dec-16-2010-ppt.pdf 

(accessed May 20, 2013). 

Proposed EB-5 Policy Memorandum Posted for Public 

Comment. USCIS posted the third draft of its policy 

memorandum for public comment on February 14, 2013.150 

The draft memorandum appears to reverse the agency’s 

earlier position as to the effect of a “material change” to a 

business plan.151 The new “draft” states: 

In order to provide flexibility to meet the realities 

of the business world, USCIS will permit an alien 

who has been admitted to the United States on 

a conditional basis to remove those conditions 

when circumstances have changed. An individual 

investor can, at the prescribed time, proceed 

with his or her Form I-829 petition to remove 

conditions and present documentary evidence 

demonstrating that, notwithstanding the business plan 

contained in the Form I-526, the requirements for 

the removal of conditions have been satisfied.152 

(Emphasis added) 

37 Annual Report to Congress – June 2013 
 

 

On March 5, 2013, the Ombudsman held a meeting with 

EB-5 stakeholders.155 The purpose of the meeting was to 

discuss challenges related to the EB-5 Immigrant Investor 

Program. Stakeholders focused on the following areas of 

concern:156 

• Communications 

– 	Participants were critical of the dedicated EB-5 


 Immigrant Investor Program email box, stating 


 that responses are often not timely, and limited to 


 basic case status.
 

– 	Participants requested more direct communication 


 with adjudicators via telephone and email.
 

• Processing Delays 

– 	Participants uniformly described posted processing 

 times as unreliable. 

– 	They also expressed frustration over receipt of multiple 

 RFEs for the same petition. 

• Policy Development 

– 	Participants called for a clear and binding project 


 pre-approval process with subsequent 


 adjudications deference.
 

– 	They underscored that future EB-5 Immigrant 

 Investor Program policy development should be 

 conducted in accordance with business realities and 

 be reasonable commercially. 

– 	Participants stressed that USCIS should avoid 
 

 implementing new or more restrictive policy 


 guidance retroactively.
 

The Ombudsman issued and broadly disseminated an 

executive summary of the stakeholder engagement findings. 

Ombudsman Odom delivered the executive summary along 

with stakeholder written submissions to USCIS Director 

Mayorkas. She continues a robust and constructive dialogue 

with the Director regarding issues pertaining to the EB-5 

program. 

New Development 

Just prior to publication of this Report, on May 30, 2013, 

USCIS issued a new final EB-5 Policy Memorandum. This 

memorandum begins by emphasizing that the purpose 

of the EB-5 Program is to promote the immigration of 

people who can help create jobs for U.S. workers through 

their investment of capital into the U.S. economy, and 

that preponderance of the evidence is the standard of 

proof in EB-5 adjudications. The memorandum addresses 

many longstanding stakeholder concerns, including when 

deference will be afforded to prior adjudications and the 

need for flexibility to accommodate business realities. 

Ombudsman Odom will continue to engage with Director 

Mayorkas on EB-5 issues and developments in the next 

reporting period, including implementation of this 

important guidance as well as the upcoming move of 

the EB-5 adjudications unit to Washington, D.C. 

155 Stakeholders were notified of this event through an email announcement, and given the opportunity to attend in person or to participate telephonically in listen-only mode. Approximately 75 stakeholders attended in-person, and another 358 individuals participating telephonically. Stakeholders 

were given the option to provide written submissions in advance of the meeting to provide input to the Ombudsman. 

156 A detailed summary of the meeting is available at http://www.dhs.gov/publication/eb-5-stakeholder-meeting-summary (accessed Apr. 19, 2013). 

Citizenship and Immigration Services Ombudsman 38 
 

 

 

 

 

 

 

Petition Information 


Management System
 

Background 

The Ombudsman reviewed concerns from stakeholders 

that the process for transferring immigration petition 

information from USCIS to the DOS Petition Information 

Management Service (PIMS) was causing delays in the 

issuance of visas to certain employment-based beneficiaries 

in nonimmigrant categories.157 PIMS is a component of the 

Consolidated Consular Database system, enabling consular 

officers to verify electronically nonimmigrant petition 

approval and review digital copies of forms and supporting 

documentation.158 DOS informed the Ombudsman that 

in approximately nine percent of employment-based 

nonimmigrant cases, consular officers overseas lacked 

required information regarding USCIS’s processing of Form 

I-129, Petition(s) for a Nonimmigrant Worker.159 

When a nonimmigrant petitioner (or his/her legal 

representative) fails to submit the required duplicate of the 

Form I-129 package to USCIS, the agency does not forward 

evidence of action on the petition to the DOS Kentucky 

Consular Center (KCC). Since the KCC is responsible for 

scanning and uploading information into PIMS, this causes 

processing delays, economic difficulties, and various other 

problems for employers and individuals attempting to secure 

visas through a U.S. consulate. 

Recommendations 

On May 16, 2012, the Ombudsman made recommendations 

to address visa processing delays connected with USCIS’s 

occasional failure to transmit Form I-129 petition approval 

information and documents to KCC.160 The Ombudsman 

recommended that USCIS: 

1) Instruct USCIS service centers to make a copy of Form 

I-129 petition package regardless of whether a duplicate 

petition package has been submitted with the filing, and 

send it to the DOS KCC for uploading into PIMS; or, 

2) Send the original petition package to the KCC, for 

scanning of documents, data entry, and – upon 

completion – forward the original petition package to 

the USCIS National Records Center for storage; or, 

3) Scan all approved petition packages at a USCIS facility, 

so electronic copies can be forwarded to the KCC for 

uploading into PIMS. 

USCIS Response 

USCIS responded to these recommendations on August 

13, 2012.161 The agency declined to implement the first 

two measures, citing resource limitations, financial costs, 

decreased productivity, and privacy concerns. USCIS 

concurred in principle with the third recommendation, but 

noted that the agency currently lacks the resources necessary 

for implementation. The agency also noted that in the future 

it plans to provide all petition information to DOS through 

the recently deployed USCIS Electronic Information System 

(ELIS).162 

157 U.S. Department of State Cable, “Accessing NIV Petition Information Via the CCD” (Nov. 17, 2007); 

http://travel.state.gov/visa/laws/telegrams/telegrams_4201.html (accessed April 11, 2013). These nonimmigrants categories are as follows: H 

(Specialty Occupations), L (Executives, Managers and Specialized Knowledge workers), O (Extraordinary Ability), P (Athletes, Entertainers and Artists), 

Q (Cultural Performers), and R (Religious workers). 

158 Id.; U.S. Department of State, “Consolidated Consular Database Privacy Impact Assessment,” (Mar. 22, 2010). 

159 Information provided by the U.S. Department of State, Kentucky Consular Center to the Ombudsman (June 21, 2011); See USCIS Forms, “Instructions 

for Form I-129, Petition for a Nonimmigrant Worker” (Jan. 19, 2011); http://www.uscis.gov/files/form/i-129instr.pdf (accessed Apr. 11, 2013). 

160 Ombudsman Recommendation 53, “Recommendations Regarding USCIS’ Role in the Petition Information Management Service” (May 16, 2012); 

http://www.dhs.gov/xlibrary/assets/cisomb/cisomb-pims.pdf (accessed Mar. 26, 2013). 

161 USCIS Response to Recommendation 53, (Aug. 13, 2012); 

http://www.uscis.gov/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20Formal%20Recommendations/USCIS%20Response%20to%20 

CISOMB%20PIMS%20Recommendation.pdf (accessed Mar. 27, 2013). 

162 Id. 

39 Annual Report to Congress – June 2013 
 

 

 

Ongoing Concerns 

USCIS declined to accept recommendations offered by the 

Ombudsman to ameliorate the negative consequences of 

failure to submit duplicate copies of nonimmigrant petitions. 

As a result, petitioners who may have inadvertently failed to 

submit the required duplicate copies will continue to face 

avoidable DOS visa issuance delays. 

Conclusion 

Consistency in RFEs is an important goal, and the 

Ombudsman will monitor USCIS’s efforts in the RFE Project. 

The Ombudsman will continue to address stakeholders’ 

concerns regarding RFEs, and assess USCIS initiatives 

designed to improve the quality and consistency of 

adjudications. With an eye toward USCIS developing L-1B 

regulations, the Ombudsman will review H-1B and L-1 

adjudication policies and practices this coming year. 

Regarding the EB-5 Immigrant Investor program, the 

Ombudsman anticipates future USCIS and stakeholder 

engagements, especially to discuss the transition of the 

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

Citizenship and Immigration Services Ombudsman 40 
 

 

USCIS Customer Service 

Immigration policies and services must be transparent and consistent in order to be effective. 

This reporting year, USCIS launched new initiatives, continued public engagement, and 

improved customer access to resources and information. The agency also successfully reduced 

the AAO processing times. Despite this progress, certain programmatic challenges persist. 

41 Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

Processing Times 

Processing times for Form I-485, Application to Register 

Permanent Residence or Adjust Status, and Form N-400, 

Application for Naturalization, adjudications remained 

comparable to last year, at approximately five months and 

four and half months, respectively. See Figure 11 on 

page 44. The AAO notably eliminated nearly all of its 

extended processing times. It is now adjudicating appeals 

within USCIS’s processing time goal of six months or less.163 

Customer Service and 

Public Engagement 

During this reporting year, USCIS established the “USCIS 

Customer Service and Public Engagement Directorate,” 

which is divided into two divisions. The Public Engagement 

Division coordinates and directs agency-wide dialogue with 

external stakeholders, while the Customer Service Division 

provides information and guidance to USCIS applicants, 

petitioners and advocates regarding immigration benefits. 

It oversees the Customer Assistance Office (CAO) and 

Contact Center Enterprise (CCEO), as well as the NCSC. 

USCIS continued public engagement, hosting more than 

1,600 public events with over 520,000 participants.164 

As stated earlier, in approximately 66 percent of all cases 

brought to the Ombudsman, individuals and employers 

attempted to resolve problems through the NCSC. When 

NCSC staff cannot resolve a customer’s inquiry, USCIS uses 

the Service Request Management Tool (SRMT), an electronic 

inquiry system that transfers the request to a USCIS field 

or service center location. An individual can also make an 

e-Request to generate an SRMT inquiry.165 See Figure 12 

on page 45. 

163 USCIS Webpage, “AAO Processing Times,” 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8ff31eeaf28e6210VgnVCM100000082ca60aR
 

CRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD (accessed May 20, 2013).
 

164 Information provided by USCIS to the Ombudsman (Apr. 24, 2013).
 

165 See supra note 6.
 

Citizenship and Immigration Services Ombudsman 42 
 

 

 

 

 

 

 

 

 

 

166 USCIS Policy Manual - Effective as of Jan. 22, 2013; 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=d58459009ccfb310VgnVCM100000082ca60a 

RCRD&vgnextchannel=d58459009ccfb310VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

167 USCIS Policy Manual Webinars; 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a891fe78ac41c310VgnVCM100000082ca60a 

RCRD&vgnextchannel=58479a485510e210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

168 Id. 

169 DHS Delegation Number 0150.1 (effective Mar. 1, 2003), which was created pursuant to the authority vested in the Secretary through the HSA of 

2002, Pub. L. 107-296. 

170 USCIS Webpage, “Appeals of Denied Petitions Under the Jurisdiction of the Administrative Appeals Office (AAO) by subject matter,” 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b2521eeaf28e6210VgnVCM100000082ca60a 

RCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD; USCIS Webpage, “Appeals of Denied Petitions Under the Jurisdiction of the 

Administrative Appeals Office (AAO) by Form Number,” 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e0a21eeaf28e6210VgnVCM100000082ca60a 

RCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD (both accessed May 21, 2013). The AAO does not exercise jurisdiction over 

petitions for approval of schools and the appeals of decisions to withdraw approval of schools for attendance by foreign students. 

171 USCIS Webpage, “The Administrative Appeals Office (AAO)” (Mar. 19, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=dfe316685e1e6210VgnVCM100000082ca60a 

RCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

172 Ombudsman Recommendation 20, “Recommendation from the CIS Ombudsman to the Director, USCIS” (Dec. 6, 2005); 

http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_20_Administrative_Appeals_12-07-05.pdf (accessed May 21, 2013). 

173 USCIS Webpage, “AAO Processing Times” (May 10, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8ff31eeaf28e6210VgnVCM100000082ca60aR 

CRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

Every SRMT inquiry receives a reference number for tracking 

purposes. USCIS received 1,022,490 SRMT requests during 

this reporting period. 

Policy Manual 

Effective January 22, 2013, USCIS announced the creation of 

a new Policy Manual designed to adapt easily to changes in 

immigration law and policy.166 To date, USCIS has released 

one chapter of the Policy Manual, titled “Citizenship and 

Naturalization,” and hosted a series of public engagements 

on this resource.167 Ultimately, USCIS intends to replace 

the AFM and the Immigration Policy Memoranda portion 

of its public website with the Policy Manual.168 No specific 

timeframe has been established for future releases. 

The Administrative 

Appeals Office 

Background 

The AAO has delegated authority to adjudicate appeals of 

certain USCIS decisions.169 The AAO exercises jurisdiction 

over matters described in 8 C.F.R. section 103.1(f)(3) 

(iii).170 The AAO reviews the decisions made by USCIS 

on applications and petitions for immigration benefits, 

including, but not limited to, employment-based petitions, 

applications for Temporary Protected Status (TPS), SIJ 

petitions, and applications relating to citizenship.171 

In 2005, the Ombudsman recommended that the AAO 

make available to the public its standard of review, precedent 

decision process, criteria by which cases are selected for 

oral argument, and decision-making statistics.172 Since 

that time, the AAO has eliminated lengthy processing 

times,173 but stakeholders continue to express concern and 

confusion regarding the AAO’s authority, independence, 

and procedures. 

43 Annual Report to Congress – June 2013 
FIGURE 11: AVERAGE PROCESSING TIMES FOR FORMS N -400 ANd I -485 

U.S. Citizenship and Immigration Services Application for Naturalization (N-400)
�

Cycle Times by Field Office for Fiscal Year 2013 (through 2nd Qtr)
�

Source: Information provided by USCIS to the Ombudsman (Apr. 24, 2013). 

U.S. Citizenship and Immigration Services Application to Register Permanent Residence or Adjust Status (I-485) 

Cycle Times by Field Office for Fiscal Year 2013 (through 2nd Qtr) 

Source: Information provided by USCIS to the Ombudsman (Apr. 24, 2013). 

Citizenship and Immigration Services Ombudsman 44 
 

 

 

 

 

 

FIGURE 12: SRMT REQUESTS 

Summary of Service Requests (April 2012 to March 2013)
 

 CASE TYPE TOTAL

1RQGHOLYHU\ 

3URFHVVLQJ7LPHV 

([SHGLWH5HTXHVW 

&KDQJHRI$GGUHVV 

7\SR(UURU 

2WKHU 

Other 

Typo Error 11%

9% 

Nondelivery 

23%



Change of Address 

32% 

Processing Times 

19% 

Expedite Request

6% 7RWDO 

6RXUFH,QIRUPDWLRQSURYLGHGE\86&,6WRWKH2PEXGVPDQ0D\

Ongoing Concerns 

Appellate Authority. Stakeholders question whether the 

AAO is an independent appellate body.174 According to the 

AAO, its officers maintain independence in the adjudication 

process. They may verify information provided in the record 

using VIBE175 or other web-based resources; consult with 

the USCIS Office of Chief Counsel if a case involves novel or 

complex issues of legal interpretation; and speak with USCIS 

component staff on operational or policy issues impacting 

appellate decisions.176 

Need for Regulations and Practice Manual. The standard 

of review applied by the AAO is de novo.

177 This standard 

does not appear in the regulations. USCIS first indicated to 

the Ombudsman in 2005 that it hoped to publish the 

AAO’s standard of review in the Federal Register as part of 

a new Interim Rule, titled the “Administrative Appeals Office: 

Procedural Reforms to Improve Efficiency.” 178 USCIS reiterated 

this expectation during a national stakeholder engagement 

held on October 20, 2010.179 Agency leaders noted that 

the proposed regulation would help streamline the appeal 

process, offer the public a better understanding of what to 

expect when filing an appeal, and address certain policy and 

procedural issues, such as the accrual of unlawful presence 

during the pendency of an appeal.180 

174 Ombudsman Teleconference Recap, “The USCIS Administrative Appeals Office” (Dec. 19, 2012); http://www.dhs.gov/ombudsman-teleconferencerecap-uscis-administrative-appeals-office (accessed May 21, 2013). 

175 VIBE is a web-based tool designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. For more information on 

VIBE, see generally USCIS Webpage; 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=521d735652f9d210VgnVCM100000082ca60 

aRCRD&vgnextchannel=521d735652f9d210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). The Ombudsman reported that immediately 

following VIBE’s rollout, stakeholders reported that the database underlying VIBE, at times, contained inaccurate and outdated information, and that 

continued problems connected with VIBE have led to burdensome Requests for Evidence and erroneous denials. See Ombudsman Annual Report 2012, 

pp. 17-18; http://www.dhs.gov/xlibrary/assets/cisomb-2012-annualreport.pdf (accessed May 21, 2013). 

176 Information provided by USCIS to the Ombudsman (Dec. 18, 2012). 

177 Id. De novo review means that the AAO takes a new look at the entire case as if no decision had previously been issued. The AAO maintains that its de 

novo review has been upheld in federal court. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 

2004); Spencer Enterprises Inc. v. U.S., 229 F. Supp.2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003)). Authority for AAO review 

under the former Immigration and Naturalization Services, 8 C.F.R. § 103.1(f)(3)(iii); http://www.gpo.gov/fdsys/pkg/CFR-2003-title8­

vol1/xml/CFR-2003-title8-vol1-sec103-1.xml (accessed May 21, 2013). 

178 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 May 21, 2013). 

179 USCIS Webpage, “Listening Session with the Administrative Appeals Office (AAO)” (Oct. 20, 2010); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=09df1980a9aaa210VgnVCM100000082ca60a 

RCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

180 Id. 

45 Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

More recently, USCIS indicated that it intends to publish a 

Notice of Proposed Rulemaking (NPRM).181 It is not clear 

whether this NPRM will specify the AAO’s standard of review 

or address other matters discussed in earlier proposed rules. 

In the absence of a final rule, stakeholders continue to seek 

clarifying information as to AAO policies and procedures.182 

In a meeting with the Ombudsman in February 2013, AAO 

leaders indicated that they are in the process of creating a 

practice manual they hope will address common stakeholder 

questions and concerns.183 They compared the manual to 

a similar resource published by the Board of Immigration 

Appeals, which discusses the following topics: jurisdiction 

and authority; scope of review; filing requirements, fees and 

processes; how to request expedited handling; and protocols 

for oral arguments.184 

Need for Precedent Decisions. Generally, AAO decisions are 

deemed precedent or non-precedent. Precedent decisions 

serve as binding legal authority for determining later cases 

involving similar facts or issues, whereas non-precedent 

decisions are binding only on the parties to the case or 

controversy at issue.185 

Pursuant to 8 C.F.R. section 103.3(c), the Secretary of 

Homeland Security, with the Attorney General’s approval, 

may designate AAO decisions as precedential.186 The AAO 

published one precedent decision in FY 2011, and two 

precedent decisions in FY 2010.187 

Stakeholders believe that by publishing more precedent 

decisions, the AAO will help USCIS adjudicators understand 

and apply the law more consistently.188 Future precedent 

decisions may also offer stakeholders more information 

as to evidentiary and other requirements.189 

Searchable Index to AAO Decisions. While AAO nonprecedent decisions are generally available on USCIS’s 

website, stakeholders point out that they are neither timely 

published nor indexed based on case name.190 USCIS has 

indicated that its records office aims to redact and post nonprecedent decisions within six months of issuance.191 

Processing Times. As of March 2013, nearly all appeal 

categories were current despite sharp increases in caseloads 

over the past several years.192 While this is a positive 

accomplishment, it must be noted that the AAO considers a 

case to be current as long as it is decided within six months 

from the time of receipt of the appeal by the AAO. This 

timeframe does not include when the appeal was pending 

at the USCIS field office or service center that issued the 

original denial decision.193 

181 Unified Agenda of Federal Regulatory and Deregulatory Actions, 78 Fed. Reg. 1586 (Jan. 8, 2013). This includes RIN: 1601-AA65, “Administrative 

Appeals Office: Procedural Reforms to Improve Efficiency.” According to the abstract, “[t]his proposed rule revises the requirements and procedures for 

the filing of motions and appeals before the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services, and its [sic] Administrative Appeals Office. The proposed changes are intended to streamline the existing processes for filing motions and appeals and will reduce delays in 

the review and appellate process. This rule also proposes additional changes necessitated by the establishment of DHS and its components.” 

182 Ombudsman Teleconference, “The USCIS Administrative Appeals Office (AAO)” (Dec. 19, 2012). 

183 Information provided by USCIS to the Ombudsman (Feb. 7, 2013). 

184 See generally BIA Practice Manual; http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm, and the Executive Office of Immigration Review 

(Immigration Court) Practice Manual; http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm (both accessed May 21, 2013). 

185 Information provided by USCIS to the Ombudsman (Dec. 18, 2012). While non-precedent decisions are not binding, stakeholders report instances 

where changes in USCIS policy have been accomplished, in part, through such AAO decisions. The Ombudsman provided information about a 

non-precedent AAO decision’s logic and rationale that USCIS adjudicators were incorporating into L-1B RFEs, Notices of Intent to Deny, and denials. See 

Ombudsman Annual Report 2010, p. 46; http://www.dhs.gov/xlibrary/assets/cisomb_2010_annual_report_to_congress.pdf (accessed May 21, 2013). 

186 8 C.F.R. § 103.3(c). 

187 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012); Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010); and Matter of Chawathe, 25 I&N 

Dec. 369 (AAO 2010). 

188 Information provided by Stakeholders to the Ombudsman during Ombudsman Teleconference, “The USCIS Administrative Appeals Office (AAO)” 

(Dec. 19, 2012); http://www.dhs.gov/ombudsman-teleconference-recap-uscis-administrative-appeals-office (accessed May 21, 2013). 

189 Id. 

190 Id. 

191 Information provided by USCIS to the Ombudsman (Dec. 18, 2012). USCIS Webpage, “Administrative Decisions”; 

http://www.uscis.gov/portal/site/uscis/menuitem.2540a6fdd667d1d1c2e21e10569391a0/?vgnextoid=0609b8a04e812210VgnVCM100000653919 

0aRCRD&vgnextchannel=0609b8a04e812210VgnVCM1000006539190aRCRD (accessed May 21, 2013). 

192 Information provided by the AAO to the Ombudsman (Feb. 7, 2013). USCIS Webpage, “AAO Processing Times” (May 10, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8ff31eeaf28e6210VgnVCM100000082ca60aR 

CRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

193 Information provided by the AAO to the Ombudsman (Feb. 7, 2013). 

Citizenship and Immigration Services Ombudsman 46 
 

 

 

 

 

Stakeholders are frustrated with delays caused by the transfer 

of cases to the AAO.194 When USCIS denies a petition or 

application, a properly filed appeal may be treated as a 

motion to reopen or reconsider within 45 days of receipt, 

and treated favorably rather than forwarded to the AAO.195 

If the reviewing official declines to take favorable action or 

decides such action is not warranted, the appeal must be 

forwarded “promptly” to the AAO.196 The regulations and 

USCIS field guidance do not make clear what constitutes 

“promptly” for purposes of forwarding an appeal to the 

AAO. The AAO cannot observe through USCIS systems when 

a Form I-290B, Notice of Appeal or Motion, is received in a 

field office;197 how long the appeal remains pending in such 

settings; and how and when the appeal and record 

of proceeding are forwarded for review.198 

194 See supra note 182. 

195 8 C.F.R. § 103.3(a)(2)(iii). 

196 8 C.F.R. § 103.3(a)(2)(iv); AFM Chapter 10.8(a)(1), “Preparing the Appellate Case Record: Administrative Appeals (AAO) Cases”; 

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-1067/0-0-0-1482.html (accessed Mar. 18, 2013). See generally Ombudsman 

Recommendation 42, “Motions Matter: Improving the Filing and Review Process for Motions to Reopen or Reconsider” (May 15, 2009); 

http://www.dhs.gov/sites/default/files/publications/cisomb/cisomb_recommendation_42_5-15-09.pdf (accessed May 21, 2013). 

197 Information provided by USCIS to the Ombudsman (Feb. 7, 2013). 

198 Information provided by the AAO to the Ombudsman (Feb. 7, 2013). 

199 See supra note 182. 

200 Id. 

201 One such request involved an appeal of a denied Form I-140, Immigrant Petition for Alien Worker, that was pending at the AAO for 24 months (17 

months beyond AAO published processing times). In response to the Ombudsman’s inquiry, the AAO requested an additional 60 days to issue a 

decision. 

202 8 C.F.R. § 103.7 (2013). The fee for biometrics capture is $85, and the fee for Form I-485, Application to Register for Permanent Residence or Adjust 

Status, is $985. 

203 8 C.F.R. § 103.7(c) (2013) allows the possibility of fee waivers for enumerated applications. Waivers apply to 19 of the 70 form types listed at 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=db029c7755cb9010VgnVCM10000045f3d6a 

1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed May 21, 2013). 

Stakeholders report that USCIS field offices and service 

centers typically retain appeals well beyond the 45-day 

period allotted to reopen or reconsider the decision.199 

This practice impacts the accuracy of processing times 

published for the AAO on USCIS’s website.200 Several 

case assistance requests received by the Ombudsman in 

2012 involved cases pending well beyond these published 

processing times.201 Because the appeal process, including 

USCIS field office or service center review and AAO 

adjudication, can take years to conclude, stakeholders point 

out that circumstances and potential eligibility for benefits 

may change significantly by the time the AAO issues its 

decisions. This wait time is not commercially viable for 

employers trying to staff time-sensitive projects or bring 

new products to the United States. It also causes prolonged 

family separation, as well as humanitarian hardships. 

Fee Waivers 

Background 

Almost all immigration applications and petitions require 

a filing fee. There are approximately 70 USCIS forms with 

corresponding fees ranging from $85 to more than $985.202 

Not all those seeking immigration benefits can afford these 

fees, and the regulations allow discretionary waivers for lowincome individuals filing certain types of applications.203 In 

November 2010, USCIS improved the fee waiver process by 

publishing a new form and guidance. Yet, some stakeholders 

continue to experience inconsistent adjudications and 

repeated rejections of fee waiver requests. 

47 Annual Report to Congress – June 2013 
 

 

 

Prior to 2010, stakeholders raised concerns with USCIS 

regarding inconsistency and unpredictability in fee waiver 

processing. There was no form or clear standards to guide 

the fee waiver process. In years past, applicants submitted 

a sworn statement, but the content and criteria of a 

qualifying fee waiver were not clear.204 When Haitian TPS 

was announced early in 2010, the fee waiver issue came 

to the fore because, according to advocates, multiple fee 

waiver rejections and time consuming legal work to correct 

them placed applicants at risk of missing the TPS registration 

deadline.205 

USCIS solicited extensive public feedback in developing the 

2010 fee waiver changes. On November 23, 2010, USCIS 

published guidance and a first-ever fee waiver request form, 

the Form I-912, Request for Fee Waiver.

206 USCIS stated: 

The fee waiver form reflects significant input from 

stakeholders ... USCIS heard concerns that the 

absence of a standardized form led to confusion 

about the criteria and standards ... The new form 

identifies clear requirements for documenting 

a fee waiver request ... USCIS will use the same 

methodology in reviewing all fee waiver requests.207 

While use of the form is optional, it simplifies the process 

for applicants by specifying eligibility criteria and necessary 

documentation. 

The new form and instructions contain three standards for 

fee waiver eligibility: (1) current receipt of a federal or 

state means-tested benefit; (2) annual household income 

that is at or below 150% of the federal poverty level;208 or 

(3) financial hardship such as recent unemployment, high 

medical expenses and/or other large unexpected expenses.209 

These criteria are listed in the alternative, meaning only 

one must be shown to qualify for a fee waiver. Further 

details on types of documentation are provided in the form’s 

instructions. 

Ongoing Concerns 

Certain low-income applicants continue to encounter 

difficulties in the fee waiver process. Since late 2012, an 

increasing number of stakeholders have sought assistance 

from the Ombudsman on this topic.210 The Ombudsman 

received requests for assistance from applicants who 

experienced multiple rejections of fee waivers by a USCIS 

lockbox, although upon the second or third submission 

the same request was sometimes approved.211 Other cases 

204 USCIS had eight policy memoranda that were superseded by the new fee waiver guideline document, see USCIS Memorandum “Fee Waiver Guidelines 

as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9 AFM Update AD11-26” (Mar. 

31, 2011); 

http://www.uscis.gov/USCIS/Laws/Memoranda/2011/March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf 

(accessed May 21, 2013). 

205 See “Designation of Haiti for Temporary Protected Status,” 77 Fed. Reg. 3476 (Jan. 21, 2010). The Director of USCIS promised “generosity of spirit” 

in the adjudication of Haitian Fee Waivers, and USCIS invested extensive time in public engagement during the program. Haitian fee waiver approval 

rates were over 80 percent by June 2010. See also USCIS Webpage, “Teleconference-Temporary Protected Status for Haiti” (Apr. 3, 2010); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ad3544c04e697210VgnVCM100000082ca60 

aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

206 USCIS Webpage, “USCIS Publishes First-Ever Proposed Fee Waiver Form” (Jul. 16, 2010); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=0fb5ac6b49cd9210VgnVCM100000082ca60a 

RCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD (accessed May 21, 2013). See also USCIS Memorandum “Fee Waiver 

Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9 AFM Update 

AD11-26” (Mar. 31, 2011); 

http://www.uscis.gov/USCIS/Laws/Memoranda/2011/March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf 

(accessed May 21, 2013). 

207 USCIS Webpage, “USCIS Publishes First-Ever Proposed Fee Waiver Form” (Nov. 22, 2010); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2a1c003cf147c210VgnVCM100000082ca60a 

RCRD (accessed May 21, 2013). 

208 In determining whether a household is at or below 150% of the HHS Poverty Guidelines, applicants are instructed to consult Form I-912P, HHS 

Poverty Guidelines for Fee Waiver Request; http://www.uscis.gov/files/form/i-912p.pdf (accessed May 21, 2013). The form also contains instructions on 

counting household size. 

209 See Instructions for Form I-912, Request for Fee Waiver, p. 2; http://www.uscis.gov/files/form/i-912instr.pdf (accessed May 21, 2013). 

210 The Ombudsman received approximately 50 cases where fee waivers were rejected multiple times for various reasons, including means-tested benefit 

documentation. Some of these cases were reopened after a second and third re-submission. Typical fact situations from cases filed with the Ombudsman include: a case rejected by a USCIS lockbox stating that no payment was included, but a fee waiver and Form I-912 were enclosed; a case denied 

where applicant submitted proof of means-tested benefit (food stamps) and tax return to demonstrate income less than 150% of the HHS Poverty 

Guidelines; a fee waiver rejected twice where evidence of means-tested benefit was provided, the identical fee waiver by the applicant’s sister was 

accepted on initial submission; and five cases that were initially rejected where applicants showed receipt of means-tested benefits or income less than 

150%, but accepted on re-submission. 

211 USCIS lockboxes are receipting centers for USCIS applications that handle fees and route applications. They are run by contractor personnel but have a 

limited number of USCIS personnel attached to them to make decisions on fee waivers and other issues. The USCIS lockboxes are currently located in 

Phoenix, AZ and Chicago, IL. 

Citizenship and Immigration Services Ombudsman 48 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

showed evidence of inconsistent application of fee waiver 

standards on documentation of means-tested benefits and 

income below 150% of the HHS Poverty Guidelines. 

The fee waiver form requests information pertaining to 

receipt of means-tested benefits by the applicant. In that 

regard, the form specifies that such programs can be state 

or federal, but must be based on the applicant’s income 

and other resources available. Applicants are instructed to 

provide evidence of current receipt of such a benefit. 

The instructions further state: 

This evidence should be in the form of a letter, notice, 

and/or other official document(s) containing the 

name of the agency granting you the public benefit. 

The document(s) submitted must show the name 

of the recipient of the means-tested benefit and 

the name of the agency awarding the benefit.212 

Stakeholders find that social service agencies will not issue 

individualized letters confirming receipt of a means-tested 

benefit. Thus, applicants are only able to present with their 

filing a confirmation of an amount received, along with a 

description of the particular means-tested benefit program. 

In February 2013, after a series of USCIS trainings for 

lockbox employees, USCIS indicated to the Ombudsman 

that fee waivers were being subjected to closer examination. 

This practice has appeared to result in the rejection of 

documents earlier deemed adequate to show receipt of 

means-tested and placement at or below 150% of the HHS 

Poverty Guidelines.213 

Applicants for SIJ status and individuals in removal 

proceedings experience problems with conflicting 

instructions, inconsistent standards, and repeated rejections 

of fee waiver requests at the Texas Service Center (TSC).214 

The USCIS filing instructions distributed in Immigration 

Court advise individuals to file applications with USCIS for 

receipting while their court proceedings are pending.215 

Respondents in removal can seek a fee waiver from the 

immigration judge,216 but the fee waiver order must 

subsequently be presented to USCIS along with a copy of 

the related application or petition.217 Stakeholders report 

multiple rejections of applications with immigration judge 

fee waiver orders. Rejections also occur in cases with 

extensive evidence of income below the USCIS standard 

and receipt of means-tested benefits, and in cases with 

court orders granting juveniles dependency as a 

supporting document.218 

Transformation 

The USCIS Office of Transformation Coordination (OTC) 

oversees the agency’s broad effort to modernize processes 

and systems, and move from a paper-based application and 

adjudication environment to an electronic one.219 OTC 

includes four major divisions: Business Integration, 

Stakeholder Readiness, Program Management, and Release 

Management.220 Through transformation, USCIS estimates 

that it will be able to receive and process six to eight million 

benefit requests annually, with easier access to information, 

streamlined adjudications, and enhanced fraud detection.221 

212 USCIS Form, “Instructions for Request for Fee Waiver,” p. 3; http://www.uscis.gov/files/form/i-912instr.pdf (accessed Jun. 13, 2013). 

213 Information provided by USCIS to the Ombudsman (Feb. 13, 2013 and Apr. 23, 2013). See also U.S. Department of Health and Human Services, 

“2013 Poverty Guidelines”; http://aspe.hhs.gov/poverty/13poverty.cfm (accessed May 21, 2013). 

214 See DHS Form, “Instructions for Submitting Certain Applications in Immigration Court and For Providing Biometric and Biographic Information to 

U.S. Citizenship and Immigration Services” (n.d.); http://www.uscis.gov/files/article/PreOrderInstr.pdf (accessed May 21, 2013). 

215 Id. 

216 See 8 C.F.R. § 1103.7(c) and the Immigration Court Practice Manual, Chapter 3.4(d); 

http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%203.pdf (accessed May 21, 2013). 

217 Supra note 214. 

218 Immigration Court rules only require that an individual demonstrate inability to pay to be eligible for a fee waiver, as long as the application type is 

one for which USCIS permits fee waivers. See Immigration Court Practice Manual, Chapter 3.4(d); 

http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%203.pdf (accessed May 21, 2013); See USCIS Forms, “Instructions for form I-912, Request for 

Fee Waiver” p. 4; http://www.uscis.gov/files/form/i-912instr.pdf (accessed May 21, 2013). 

219 Information provided by USCIS to the Ombudsman (May 5, 2013). USCIS intends to allow paper filings for all applications and petitions to 

accommodate customers that have difficulties accessing its electronic platform. 

220 USCIS Webpage, “Office of Transformation Coordination” (Oct. 1, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=d1808ac6f0dbc210VgnVCM100000082ca60a 

RCRD&vgnextchannel=d1808ac6f0dbc210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

221 USCIS Webpage, “Executive Summary, USCIS Transformation Customer and Advocate Feedback Sessions” (Aug. 30, 2010); 

http://www.uscis.gov/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/September%202010/Executive% 

20Summary%20-%20External%20Stakeholder%20Feedback%20Sessions.pdf (accessed May 21, 2013). 

49. Annual Report to Congress – June 2013 
 

 

 

 

 

 

 

 

 

On May 22, 2012, the agency launched “the foundational 

release” of its new system, named USCIS Electronic 

Immigration System (USCIS ELIS).222 This release enables 

individuals seeking immigration benefits and/or their 

legal representatives to create an account and file for 

certain benefits online.223 Customers may now file in ELIS 

a stand-alone Form I-539, Application to Extend/Change 

Nonimmigrant Status.224 

On March 28, 2013, USCIS elicited feedback from 

stakeholders about adding Form I-526, Immigrant Petition 

by Alien Entrepreneur, to ELIS.225 The agency has indicated 

that ELIS capabilities will be deployed on a four-month cycle, 

with Form I-526 scheduled for release in summer 2013. 

The next major release is scheduled for the end of September 

2013. OTC is assessing the possibility of reducing the length 

of these cycles to three months, beginning in FY 2014. If 

this is feasible, the next release would be in January, instead 

of February 2014.226 

Currently, 15 adjudicators at the TSC and 23 adjudicators 

at the VSC are adjudicating applications using ELIS.227 An 

estimated 679 contractor and government staff outside 

of the OTC provide technical and business subject matter 

expertise to the program.228 In 2014, USCIS plans to 

incorporate the following functions into ELIS: “end-to-end 

paperless processing” for immigrants entering the United 

States; applications for TPS; DACA requests; Provisional 

Waiver applications; family-based adjustment of status 

petitions and related waiver applications; and the “product 

line” associated with Petitions for Alien Entrepreneurs.229 

While Transformation has the potential to improve 

dramatically the experience of those seeking immigration 

benefits and services, it has been marked by protracted 

delays in implementation, design-defects, and cost 

overruns.230 Transformation was originally expected to 

be a five-year program likely to cost between $400 and 

$500 million.231 Actual expenditures have reached 

$740 million.232 

222 USCIS Webpage, “USCIS Launches Online Immigration System, USCIS ELIS” (May 22, 2012); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4eaa169ccc477310VgnVCM100000082ca60a 

RCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed May 21, 2013). 

223 USCIS Webpage, “USCIS ELIS” (May 20, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b1659e415d116310VgnVCM100000082ca60 

aRCRD&vgnextchannel=b1659e415d116310VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

224 See supra note 223. See also USCIS Webpage, “The Benefits of USCIS ELIS Fact Sheet” (Apr. 10, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b2b74686c238310VgnVCM100000082ca60 

aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD (accessed May 21, 2013). 

225 Ombudsman staff compiled notes during a USCIS Stakeholder Engagement. See generally USCIS Webpage, “USCIS ELIS and the EB-5 Immigrant 

Investor Program” (Mar. 29, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d3e4f2911188d310VgnVCM100000082ca60 

aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

226 Information provided by USCIS to the Ombudsman (May 9, 2013). 

227 Information provided by USCIS to the Ombudsman (May 10, 2013). 

228 Id. 

229 Id. 

230 DHS Office of the Inspector General (OIG), “USCIS Faces Challenges in Modernizing Information Technology,” OIG-05-41 (Sept. 2005); U.S. 

Government Accountability Office (GAO) Report, “Information Technology: Near-Term Effort to Automate Paper-Based Immigration Files Needs 

Planning Improvements,” GAO-06-375 (Mar. 31, 2006); GAO Report, “Homeland Security: DHS Enterprise Architecture Continues to Evolve but 

Improvements Needed,” GAO-07-564 (May 9, 2007); GAO Report, “USCIS Transformation: Improvements to Performance, Human Capital, and 

Information Technology Management Needed as Modernization Proceeds,” GAO-07-1013R (Jul. 17, 2007); GAO Report, “Immigration Benefits: 

Consistent Adherence to DHS’s Acquisition Policy Could Help Improve Transformation Program Outcomes,” GAO-12-66 (Nov. 22, 2011). 

231 Aliya Sternstein, “USCIS Mismanaged Immigration Processing Report, Auditors Report,” Nextgov (Nov. 22, 2011); 

http://www.nextgov.com/technology-news/2011/11/uscis-mismanaged-immigration-processing-project-auditors-report/50175/ (accessed May 21, 

2013); David Perera, “USCIS Transformation Behind Schedule, Over Budget,” FierceGovernmentIT (Nov. 23, 2011); 

http://www.fiercegovernmentit.com/story/uscis-transformation-behind-schedule-over-budget/2011-11-23 (accessed May 21, 2013). 

232 Supra note 227. 

Citizenship and Immigration Services Ombudsman 50 
Since the USCIS ELIS release, the Ombudsman has received 

few inquiries specifically related to this system. Some 

community-based organizations have expressed concern 

that the individuals they represent may lack regular access to 

a computer, or feel uncomfortable navigating an electronic 

system. Others note that the ELIS platform remains 

English-only. 233 

Conclusion 

USCIS strives to provide meaningful customer service 

through a wide variety of programs and initiatives.234 This 

year, the agency maintained under six-month processing 

times for both the Forms I-485 and N-400. In releasing 

the first chapter of its new Policy Manual, USCIS further 

provided consolidated and updated information on 

citizenship and naturalization adjudications. With regard 

to the AAO, USCIS reduced Form I-290B processing times 

virtually across the board. Stakeholders question the AAO’s 

authority, independence and timely tracking of appeals at 

field and service center locations. USCIS also worked to 

streamline the filing process for fee waiver requests in light 

of stakeholder reports of repeated rejections and inconsistent 

adjudications. The Ombudsman will continue to monitor 

USCIS’s customer service efforts and looks forward to 

promised improvements through Transformation. 

233 USCIS Webpage, “Frequently Asked Questions: e-filing using USCIS ELIS” (May 13, 2013); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=c5f924fa49716310VgnVCM100000082ca 

60aRCRD&vgnextoid=c5f924fa49716310VgnVCM100000082ca60aRCRD (accessed May 21, 2013). 

234 USCIS Webpage, “About Us” (Sept. 12, 2009); 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2af29c7755cb9010VgnVCM10000045f3d6a1 

RCRD&vgnextchannel=2af29c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed May 21, 2013). 

51 Annual Report to Congress – June 2013 
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Citizenship and Immigration Services Ombudsman 52 
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. 

53 Annual Report to Congress – June 2013 
(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) CONSULTALTION—The Ombudsman may consult with the appropriate supervisory personnel of the Bureau of 

Citizenship and Immigration Services in carrying out the Ombudsman’s responsibilities under this subsection. 

(f) RESPONSIBILITIES OF BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES—The Director of the Bureau of 

Citizenship and Immigration Services shall establish procedures requiring a formal response to all recommendations 

submitted to such director by the Ombudsman within 3 months after submission to such director. 

(g) OPERATION OF LOCAL OFFICES­

(1) IN GENERAL—Each local ombudsman— 

 (A) shall report to the Ombudsman or the delegate thereof; 

 (B) may consult with the appropriate supervisory personnel of the Bureau of Citizenship and Immigration Services 

 regarding the daily operation of the local office of such ombudsman; 

 (C) shall, at the initial meeting with any individual or employer seeking the assistance of such local office, notify such 

 individual or employer that the local offices of the Ombudsman operate independently of any other component 

 of the Department and report directly to Congress through the Ombudsman; and 

 (D) at the local ombudsman’s discretion, may determine not to disclose to the Bureau of Citizenship and Immigration 

 Services contact with, or information provided by, such individual or employer. 

(2) MAINTENANCE OF INDEPENDENT COMMUNICATIONS—Each local office of the Ombudsman shall maintain a phone, 

facsimile, and other means of electronic communication access, and a post office address, that is separate from those 

maintained by the Bureau of Citizenship and Immigration Services, or any component of the Bureau of Citizenship and 

Immigration Services. 

Citizenship and Immigration Services Ombudsman 54 
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 

55 Annual Report to Congress – June 2013 

CHIEF 

FINANCIAL 

OFFICER 

HEALTH 

AFFAIRS 

INTERGOVERNMENTAL 

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 
 

Appendix 3: USCIS Action Regarding 

Ombudsman Recommendations 

The following chart lists the Ombudsman recommendations issued over the past two reporting periods and denotes USCIS 

action related to each recommendation. USCIS’s response and action include: 

Implemented. USCIS has accepted and implemented the Ombudsman’s recommendation. 

Active. USCIS has accepted and is taking action to adopt the Ombudsman’s recommendation. 

Declined. USCIS has declined to accept the Ombudsman’s recommendation. 

RECOMMENDATION DATE IMPLEMENTED ACTIVE DECLINED 

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Citizenship and Immigration Services Ombudsman 56 
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57 Annual Report to Congress – June 2013 

       

       

   

   

         

Citizenship and Immigration Services Ombudsman 

U.S. Department of Homeland Security 

Mail Stop 0180
 

Washington, DC 20528
 

Telephone:  (202) 357­8100

 Toll­free:  1­855­882­8100
 

http://www.dhs.gov/cisombudsman
 

Send your comments to: cisombudsman@hq.dhs.gov