United States: USCIS Ombudsman Report Highlights Sustained RFE Rates in Employment-Based Filings and Lengthy Delays in Employment Authorization Processing

The USCIS Ombudsman's 2016 Annual Report confirms USCIS's continued close scrutiny of high-skilled visa classifications and adjudication discrepancies between Service Centers. In FY 2015, requests for evidence were issued in 55 percent of L-1A petitions at the California Service Center (CSC) and 29 percent at the Vermont Service Center (VSC); 44 percent of L-1B petitions at CSC and 33 percent at the VSC; and 23 percent of H-1B petitions.

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Jul 28, 2016

The USCIS Ombudsman's 2016 Report to Congress continues to highlight significantly high rates of requests for evidence (RFE) for high-skilled immigration petitions, inconsistent adjudications across agency service centers and lengthy delays in employment authorization processing. The Ombudsman calls on USCIS for more transparency regarding RFE rates, especially concerning processing disparities between Service Centers and the issuance of overly burdensome requests for evidence, and to institute supervisor review for evidence requests.

Continued High RFE Rates; Processing Disparities Among Service Centers

The independent review confirmed that sustained close scrutiny by USCIS frustrates business immigration needs. The RFE rates for nonimmigrant filings at the Vermont and California Service Centers remain high and the processing disparities between the Service Centers continue. In fiscal year (FY) 2015, the L-1A RFE rate at the California Service Center (CSC) surged to 55 percent - its highest level in 20 years. At the Vermont Service Center (VSC), the L-1A RFE rate dropped to almost 30 percent in FY 2015, from a high of 44.6 percent in FY 2014. In the absence of any changes to laws or regulations affecting L-1A, the Ombudsman indicated it was unclear why L-1A RFE rates differ so drastically between Service Centers.

The L-1B RFE rate declined at both Service Centers, but continues to remain high, with 44 percent at the CSC and 33 percent at the VSC. Although the agency issued draft L-1B guidance in early 2015, the Ombudsman notes that the L-1B RFE rates in FY 2015 were not affected by the guidance as it was not finalized until August 2015.

In FY 2015, the H-1B RFE rate at CSC and VSC aligned at 23 percent, a 2 percent decline from FY 2014. The impact of the precedent decision in Matter of Simieo , 26 I&N Dec. 542 (AAO 2015) - where the Administrative Appeals Office held that petitioners must file an amended or new H-1B petition with the corresponding labor condition application (LCA) if an employee moves to a new work location that is outside the area of employment covered by the previous LCA - has not yet become apparent, as the guidance was not issued until late FY 2015. However, stakeholders have reported receiving RFEs requesting information unrelated to the reason for filing the amendment.

The Ombudsman also confirmed the high RFE rates for O-1 petitions for individuals with extraordinary ability or achievement and P-1 petitions for internationally recognized athletes, at 49 percent and 65 percent, respectively, in FY 2015. High RFE rates in conjunction with stakeholder-reported lengthy processing times, and the longstanding issue of USCIS's requests for consultations from incorrect industry peer groups continue to compound the burden on petitioners.

Continued Delays in Employment Authorizing Processing

Foreign nationals seeking new or renewed employment authorization documents (EADs) continue to face lengthy delays, as previously reported in the FY 2014 report. Despite steps USCIS has taken to address EAD adjudication delays, processing times beyond 90 days continue. In FY 2015, EAD adjudications after 90 days reached 22 percent, with a corresponding upswing in EAD-related requests for case assistance from the Ombudsman. Lapsing EADs lead to business interruption for U.S. employers and financial hardship to foreign nationals.

Implementation of Employment-Based Executive Actions

The Report acknowledges progress made by the agency in implementing President Obama's executive actions aimed at improving employment-based immigration; though it also emphasized the Ombudsman's ongoing concern that foreign workers lack legal standing in the I-140 process and directed the Department of Homeland Security to clarify and expand protections for the beneficiaries of employment-based immigrant and nonimmigrant petitions. Specifically, the Ombudsman recommends that H-1B employees receive confirmation of the filing of petitions on their behalf, and that employers update former employees on the status of previously filed petitions. These changes, it suggests, would "bring immigration procedures in alignment with AC21's 'porting' provisions, giving employees improved awareness of their immigration status and better enabling them to make fully informed career decisions."

What This Means for Employers and Foreign Nationals

The USCIS Ombudsman's report confirms the overly burdensome and inappropriate requests experienced by employment-based petitioners and highlights the inefficiencies that negatively affect U.S. businesses and foreign workers.

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

© 2016 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved
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