• USCIS Ombudsman Report Highlights Continued Challenges Facing Employment-Based Petitioners
  • August 17, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The USCIS Ombudsman’s 2015 Report to Congress confirms that employers face continued high rates of requests for evidence (RFEs) and denials of high-skilled immigration petitions and a very low likelihood of success in administrative appeals.

    The Ombudsman’s independent review of USCIS adjudication procedures charges that the RFE process is often “redundant,” “unnecessary,” and “unduly burdensome” to employers. It calls on USCIS to improve training for adjudicators, issue clearer guidance on adjudication standards and institute supervisor review for evidence requests.

    Continued High RFE Rates for H-1B and L-1 Petitions

    The Ombudsman’s analysis of adjudications at USCIS’s California and Vermont Service Centers shows RFE rates for H-1B and L-1 petitions remain at “near historic” highs that are disproportionate to the rate of petition denials.

    According to the report, nearly 25 percent of H-1B petitions receive RFEs. The California Service Center (CSC) issued H-1B RFEs at a higher rate than the Vermont Service Center (VSC), but both saw an increase in RFEs in the period studied. RFEs questioning whether H-1B positions were in specialty occupations were characterized as unduly restrictive and often inconsistent with the federal government’s occupational data.

    RFE rates for L-1 intracompany transferees also remain close to record levels, particularly for extensions of L-1B petitions -- a trend the Ombudsman found troubling. More than 40 percent of all petitions for L-1A executives and managers are RFE’d, though CSC’s rate of RFE issuance dropped slightly over the period under review. Nearly 50 percent of all petitions for L-1B specialized knowledge personnel receive RFEs. The VSC’s L-1B RFE rate surpassed that of the CSC, which had historically taken the most restrictive positions in specialized knowledge adjudications of the two Service Centers.

    The report does not offer denial statistics supporting its conclusion that RFE rates are disproportionate to denial rates, though it does provide relevant information from FY 2014, during which USCIS also issued high levels of RFEs, and yet denied less than 4 percent of H-1B petitions, and approximately 19 percent of L-1A petitions and 29 percent of L-1B petitions.

    Low Likelihood of Success on Appeal

    Echoing its 2014 report, the Ombudsman shed further light on the low likelihood of success on appeal faced by employers. Fewer than 10 percent of employment-based petition denials appealed to the Administrative Appeals Office are successful, a statistic the Ombudman suggested causes employers to either question the utility of investing significant legal and filing fees in the appeals process or doubt that they will receive meaningful review of agency decisions. This is despite the high cost of filing an administrative appeal.

    Delays in Employment Authorization Processing

    A new area of concern for the Ombudsman is the lengthy delays faced by foreign nationals seeking new or renewed employment authorization documents (EADs), particularly during the summer months. Though USCIS is required by regulation to adjudicate EAD applications in 90 days or less - though limited exceptions exist, most notably for H-4 applicants seeking employment authorization. In spite of this regulatory requirement, however, processing times often far exceed this timeframe. Lapsing EADs lead to business interruption for U.S. employers and financial hardship to foreign nationals.

    What This Means for Employers

    The 2015 Ombudsman’s report sheds important light on the experiences of employment-based petitioners and highlights inefficiencies that negatively affect U.S. businesses and foreign workers.