Written by Crispin Aranda
Posted on June 30, 2017 |
The Ombudsman - independent agency watchdog of the Department of Homeland Security released its findings on how the Department is performing - or not performing - its tasks despite continuing price increases.
Ms. Julie Kirchner, the Ombudsman (the watchdog of the Department of Homeland Security- DHS) issued its annual report on June 29, 2017 detailing the “mounting problems with the Immigration Case Load Management”.
The Ombudsman is an independent, impartial, and confidential resource within the U.S. Department of Homeland Security (DHS).
Findings on specific cases
Agency Error . USCIS approved a university’s Form I-129, Petition for a Nonimmigrant Worker (H-1B Classification), but shortened the requested 3-year validity period to 1 year.
The school contacted USCIS twice to ask for review of this decision. In response, USCIS replied that the validity dates issued were correct.
Findings and resolution
The Ombudsman requested that the service center conduct an additional review of the file, highlighted concerns about the shortened validity period, and escalated its concerns to USCIS headquarters.
USCIS subsequently confirmed that the service center had shortened the validity period in error, and USCIS issued an amended approval notice.
Correcting Improper Denials
When a family-based petitioner contacted USCIS to request that a child be granted the same priority date as the principal parent, USCIS denied the request, erroneously stating that the child had turned 21 after the parent’s visa was issued and was therefore ineligible for the earlier priority date.
Findings and resolution. The Ombudsman noted that the child had in fact turned 21 a year before his parent’s visa was issued and otherwise met the requirements to be accorded the same priority date and preference classification as his immediate relative parent. USCIS acknowledged its error and granted the earlier priority date—based on a petition filed 24 years earlier.
Preventing Children from “Aging Out” and Losing Eligibility
A young woman filed Form I-601A, Application for Provisional Unlawful Presence Waiver, as soon as the newly promulgated regulations permitted, but was in danger of turning 21 and “aging out” of eligibility for the benefit before it was adjudicated. USCIS initially denied her request to expedite, incorrectly stating that the agency does not expedite provisional waiver applications.
Findings and resolution. The Ombudsman then brought the case to the attention of USCIS headquarters. USCIS subsequently determined the applicant met the expedite criteria and approved the waiver just weeks before she would have aged out.
Change of Address
An applicant for employment authorization notified USCIS of his change of address on the same day that his new Employment Authorization Document (EAD) was approved and ordered produced. Since card production is completed at a different facility from the office that adjudicates applications and processes address changes, the update was not timely shared with the production facility.
As a result, the applicant’s EAD was mailed to the old address. When it was not returned to USCIS by the U.S. Postal Service, USCIS informed the applicant he was required to file a new application, with the appropriate fee ($365 at that time).
Case resolution. As the applicant had timely notified USCIS of his move, and the non-delivery was not a result of the applicant’s actions, the Ombudsman intervened, and USCIS produced a new card without a new application or fee.
Naturalization delay. In FY 2016, USCIS received over 972,000 naturalization applications—nearly 200,000 more than projected—in advance of a scheduled fee increase and U.S. presidential election; at the same time, it expanded its Transformation initiative to include electronic processing of naturalization applications. Technical problems caused by electronic processing created delays for a large number of naturalization applicants.
Finding. While many of these initial difficulties have been resolved, applicants for naturalization continue to face delays in obtaining the rights and privileges of citizenship.
Administrative review, through motions to reopen and reconsider to the field and appeals to the Administrative Appeals Office (AAO), provides individuals and employers an opportunity to obtain reexamination of a USCIS denial.
The AAO has made significant improvements to its processing times, completing most administrative appeals within 180 days; nevertheless, there are a variety of steps USCIS could take to ensure that administrative review is meaningful and timelier.
Congress extended the Immigrant Investor (EB-5) Regional Center Program, most recently through September 30, 2017, but a series of short-term extensions triggered filing surges; investors and their dependents from China may have to wait 10 years or longer for immigrant visas under the EB-5 program.
Humanitarian and Request for Waivers
The Ombudsman continued to receive requests for case assistance relating to provisional waivers in 2016. The majority of these requests involved denials (issued prior to the regulation change) that did not provide specificity for the “reason to believe” there were other grounds of inadmissibility, denials that did not appear to reflect a complete review of the documentation supporting the claim of extreme hardship, and processing times beyond those posted. There is no administrative or judicial review of a provisional waiver denial.
Background. DHS launched the Provisional Unlawful Presence Waiver program on March 4, 2013,and expanded the program to all statutorily eligible applicants on July 29, 2016.
The program permits individuals who are inadmissible, but who qualify for a waiver of inadmissibility, to remain in the United States while waiting the resolution of their application. Previously, an eligible applicant was required to file Form I-601 with USCIS after departing the United States and then visit a U.S. consulate for an interview. In July 2016, USCIS expanded the program to all statutorily eligible applicants.
The expansion was the result of a 2014 policy memorandum issued by thenSecretary of Homeland Security Jeh Johnson.
The final rule, which became effective August 29, 2016, also expanded the provisional waiver process to permit the applicant to show extreme hardship to a permanent resident spouse or parent.
Interagency, Customer Service, and Process Integrity
USCIS raised filing fees by a weighted average of 21% despite not meeting prior commitments to processing time goals.
USCIS is in the midst of a troubled, years-long modernization effort, referred to as “Transformation,” to move from paper-based to electronic filing, adjudication, and case management across approximately 90 immigration product lines. After more than 10 years of work, however, at the end of 2016, USCIS stakeholders were able to file online consistently for just two immigration benefits.
Despite the increase in filing fees, there remains unresolved problems in processing cases and management. It is hoped that the new Administration could bring some improvement in this area, other than security, abuse, fraud, and other enforcement issues.
USCIS should consider additional options for the delivery of notices and documents, including requiring a signature for delivery of secure documents, launching a long-planned “hold for pickup” pilot, and expanding use of pre-paid courier service mailing labels.
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