CIS Ombudsman Highlights Continued Challenges Facing Employment-Based Petitioners

The Citizenship and Immigration Services (CIS) Ombudsman's 2017 Report to Congress confirms that employers and foreign workers continue to face immigration processing challenges, including persistent processing delays, a very low likelihood of success in administrative appeals and problems with the delivery of critical immigration documents by mail. The report is issued annually by the Ombudsman’s Office, an independent body created by Congress to recommend improvements to the delivery of citizenship and immigration services and assist immigrants and nonimmigrants facing problems with pending cases.

Processing Delays and Inaccurate Processing Times

The Ombudsman reports a high incidence of cases pending beyond USCIS’s stated processing times. Though USCIS has indicated that it is working to improve the accuracy of its official processing time reports, the Ombudsman notes that current reports are imprecise and do not reflect adjudications that are prolonged because of requests for evidence (RFEs) or notices of intent to deny (NOIDs).

Employment Authorization Document Delays

For the past several years, the Ombudsman has highlighted lengthy processing times for employment authorization documents (EADs). With the recent elimination of a regulation that required the agency to adjudicate EAD applications in 90 days, the Ombudsman raises the possibility of ongoing employment authorization delays. The Ombudsman notes that USCIS will continue to accept case inquiries once an application is pending for 75 days and confirms that it too will continue to assist individuals whose applications have been pending for 75 days or more.

Continued EB-5 Backlogs and Delays

The Ombudsman’s report confirms significant backlogs and processing delays for EB-5 immigrant investors. Worldwide, there are currently more than 88,000 pending or approved I-526 petitions for a visa category that allows for 10,000 immigrant visas yearly. Due to the oversubscription, the EB-5 immigrant petition now takes 16 months to process and the related petition to remove permanent resident conditions takes 27 months. The backlog is even worse for Chinese nationals, who, in FY 2016 made up 76% of all EB-5 investments, resulting in wait times of 10 or more years for Chinese nationals and their dependents.

The backlog is exacerbated by the short-term nature of Congress’s reauthorizations of the EB-5 Regional Center program and by recent proposals to raise the investment threshold for participation in the program, both of which have triggered filing surges by investors concerned about future changes.

Low Rates of Success on Administrative Appeal

Echoing its previous reports, the Ombudsman shed further light on the low likelihood of success on appeal faced by employment-based petitioners seeking review at the USCIS Administrative Appeals Office. In FY 2016, the percentage of petition denials overturned on appeal was as follows:

• H-1Bs: 2%

• L-1: 9%

• EB-1 multinational manager: 13%

• EB-2: advanced degree/exceptional ability: 14%

• EB-3: Professional and skilled workers: 4%

Persistent Problems with Mail Delivery of Immigration Documents

Foreign nationals frequently fail to receive critical mailings from USCIS, such as EADs, advance parole documents and permanent residence cards, because of inefficient agency change-of-address processing and no clear procedures for dealing with misdeliveries. Compounding the issue, USCIS burdens the applicant with proving a document was not delivered if USCIS has no record of a misdelivered document. Until this is resolved, the Ombudsman recommends that foreign nationals who move ask local post offices to hold their mail.

What This Means for Employers and Foreign Nationals

The USCIS Ombudsman's annual report continues to shed important light on the processing issues facing foreign nationals and their employers and highlights inefficiencies that negatively affect U.S. businesses and foreign workers.

One notable change from previous annual reports is the absence of statistics on the issuance of H and L RFEs. In years past, the Ombudsman’s report revealed high RFE rates at the Vermont and California Service Centers, as well as inconsistent adjudications across centers. Last year, the Ombudsman reported that L-1B filings were RFE’d at a rate of 44% at the CSC and 33% at the VSC, while H-1B petitions were RFE’d at a rate of 23% at both centers. This year’s report does not explain the omission.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.