Ombudsman's Annual Report to Congress for 2004-05
Posted Jul 22, 2005
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The U.S. Citizenship and Immigration Services (USCIS) Ombudsman, Mr. Prakash Khatri, issued his statutorily mandated annual report to the U.S. Congress on June 30, 2005. The report covers the period from June 1, 2004 through May 31, 2005. The report discussed ongoing problems, the USCIS's response to the Ombudsman's recommendations, and provided updates on pilot programs the USCIS executed during the year. The Ombudsman's role, essentially, is to try to create solutions to recurring problems regarding immigration services. We last covered the Ombudsman in our August 8, 2003 article, DHS Watch : New Citizenship and Immigration Ombudsman, available on MurthyDotCom.
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USCIS Backlogs Result in Hardship
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The Ombudsman cited USCIS backlogs and prolonged processing times as a continuing problem. The prolonged processing times permit persons who are not entitled to benefits to remain in the United States, harm businesses and schools who need their workers and students by certain dates, and cause individuals to lose jobs, incur financial hardship, and face unnecessary family separation. The Ombudsman also questioned whether reducing all processing times to six months or less would eliminate the backlog and address these negative effects. He pointed out that people are willing to pay for faster processing, as indicated by the fact that, in Fiscal Year (FY) 2004, 48% of all I-129 petitions for nonimmigrant workers were filed via premium processing, generating $202 million in premium processing fees. These fees represented approximately 15% of the fees that the USCIS collected in FY2004.
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The FY2005 and FY2006 backlog reduction targets were reduced for I-485 applications (Adjustment of Status) and I-765 applications (Employment Authorization Document) so that the USCIS could reallocate some of their employees to the backlogged naturalization applications.
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Improve I-485 Processing to Reduce Backlogs
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As of April 2005, there were 750,000 I-485 applications pending with the USCIS. The Ombudsman pointed out that, if I-485 applications could be processed more quickly, the need to spend time and resources on interim benefits (Employment Authorization Documents and Advance Paroles) would be significantly reduced and those employees could be freed to work on other cases. Further, anyone who may be tempted by the new driver's license requirements in the Real ID Act to file a frivolous I-485 application to get interim benefits would likely be deterred if cases were processed quickly and interim benefits were not generally needed.
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Concern that Reduced Filings Would Generate Lesser Fees
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Interim benefit fees generated 14% of the fees that the USCIS collected in FY2004. To minimize the fees lost and create an incentive to process the I-485s more quickly, the Ombudsman recommended in the report that the USCIS create one form and fee to apply for the green card and the interim benefits. Since this is only a recommendation, there is no guarantee it will be implemented in the foreseeable future. This recommendation does not change current forms nor the need to separately apply for the Employment Authorization Document (EAD) and Advance Parole (AP), if needed or desired. We would note, with respect to the Ombudsman's recommendation, that not all people filing for adjustment of status need or want EADs or APs. There should remain some way to avoid paying for these benefits if they are not needed or desired.
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Visa Retrogression May Slow the Processing Further
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Currently, there are far more than 140,000 employment-based I-485 applications pending with the USCIS. As regular MurthyDotCom and MurthyBulletin readers will recall, there are 140,000 employment-based visa numbers made available each year. The U.S. Department of State (DOS) does not issue cut-off dates in the Visa Bulletin based on the number of pending cases. Instead, they calculate visa number availability based on the number of cases that are likely to be approved within a set timeframe. Therefore, the number of pending employment-based I-485s can exceed the annual visa number allotment. Since I-485 cases cannot be approved without available visa numbers, some of those with pending cases may end up needing (and being entitled to) interim benefits, as their cases may remain pending for extended periods due to an unavailability of visa numbers in the corresponding categories. [Editor's Note : The most recent DOS Visa Bulletin is always available on MurthyDotCom.]
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Security Checks Cause Additional Costs and Delays
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The USCIS is not a law enforcement agency, but individuals must clear security checks in order to be granted most immigration benefits. This means that the USCIS must pay law enforcement agencies to conduct these security checks for them. Currently, fingerprints are archived, but they are not retrievable, which also adds substantial time to the process.
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The Ombudsman reports that the USCIS's computer systems are form-centric instead of person-centric. This makes it difficult to track individuals from one process to another.
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USCIS Must Standardize and Enforce Uniform Policies
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The Ombudsman cited a lack of standardization among service centers and district offices as a continuing problem within the USCIS. Some centers and offices do not execute all guidance received from Headquarters. The Ombudsman recommended greater standardization and stronger enforcement of Headquarters's guidance so that an applicant is likely to get the same outcome regardless of where s/he files an application. We at The Law Office of Sheela Murthy applaud this recommendation. Those who use the immigration system need to be able to count on uniformity in the application of rules and requirements, since it is a federal system. It is frustrating for all involved to know that an issue has been resolved or clarified at the Headquarters level, but the instructions or procedures are inconsistently implemented, or are sometimes completely ignored.
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USCIS Must Improve Personnel Training
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Currently, USCIS adjudicators undergo only one initial formal training period. Thereafter, their training is left to each service center or district office. Since there are quotas to fill, time used for training is often viewed as time taken from processing, rather than considering it a tool vital to making the work more efficient and the results more consistent. The Ombudsman recommends more standardized training in the USCIS and cross-training between the USCIS, Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the immigration components of the DOS, the U.S. Department of Justice (DOJ), and the U.S. Department of Labor (DOL).
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While the need to comply with processing quotas in order to clear backlogs is understandable, it would seem that training quotas could also be considered. Many professionals, including attorneys, have ongoing continuing education requirements. Since adjudicators hold life-altering decisions in their hands, their proper training should be a priority. Moreover, proper and consistent adjudication may save time in the long run. Fewer mistakes would reduce the need to file motions to reopen and appeals. The need to take other steps to correct service errors would also be reduced.
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I-90 Pilot Program
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The I-90 pilot program for replacement green cards reduced I-90 processing from eight months to less than two weeks. The Ombudsman is concerned, however, that this program may require more staff and that it potentially costs the customers more money. This program has been expanded.
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CSC Backlog Elimination Pilot Program
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Under the CSC Backlog Elimination Pilot Program to allow the I-140 and I-485 to be filed at the same time and then processed concurrently, 1,376 cases were filed. The goal was to process these employment-based second preference (EB2) cases, and the I-485s filed with them, within 75 days. Only 347 of the cases were processed in 75 days. There were 742 on hold, and most of these were due to security checks. A few were held for Requests for Evidence. Under this program, 847 Employment Authorization Documents and 914 Advance Paroles were issued.
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New York Pilot Program
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The goal of the New York Pilot Program was to process family-based cases within 90 days of filing. Instances of fraud did not decline. Judicial restrictions in New York require the office to spend some time reviewing potentially fraudulent cases, and persons can obtain interim benefits during that time. The program was ended without prior notice in January 2005. While the program existed, 8,119 cases were filed. Of these, 4,509 were completed within 90 days. The USCIS still intends to implement a similar version in offices across the U.S. over the next two years.
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Dallas Office Rapid Adjustment (DORA) Program
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The DORA program involves up-front processing when the applicant is interviewed the same day that the case is filed. There have been 12,037 appointments. Of these, 2,183 did not appear for the interview. There have been 1,996 rejections of cases due to fee issues, insufficient documentation, duplicate filings, unavailable visa numbers, incorrect jurisdictions, and other miscellaneous reasons. Approximately 58 percent of the cases are processed within 90 days.
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Conclusion
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At The Law Office of Sheela Murthy, P.C., we are pleased that the role of the Ombudsman has been created by Congress and that Mr. Khatri is actively working towards system-wide improvements within the USCIS. This ability to look at the big picture and find creative ways to address long-standing problems was desperately needed. The benefits are clear for the long run, if one can be patient while the Ombudsman's suggestions are implemented.