CIS Ombudsman annual review finds that RFE rates remain high

21 Jul 15

UNITED STATES

Requests for evidence (RFEs) remain high for H-1B and L-1 petitioners, according to an annual review of U.S. Citizenship and Immigration Services by the CIS Ombudsman in a report to Congress. RFE rates in the H-1B and L-1 categories at both the California Service Center and Vermont Service Center remain at or near historic highs, the report said.

In many cases, the RFEs appear to be redundant, seek documentation provided previously, and request information that is irrelevant or exceeds what is needed to complete the adjudication, or are unduly burdensome in scope or intrusiveness, the report found.

In the L-1B category, nearly half of all petitions received RFEs, and denial rates reached 35 percent. Forty-one percent of extensions requests were denied.

The report also addressed specific issues and recommendations:

H-1B adjudications
The Ombudsman cited ongoing misapplication of the Occupational Outlook Handbook by adjudicators deciding whether an H-1B petition is for a specialty occupation, pointing out cases where computer programmers and marketing analysts were deemed not to be categorized as “specialty occupations” based on inappropriate reliance on statements in the handbook.

Simeio decision
The report addressed business concerns about USCIS’s interpretation of the precedent decision in Matter of Simeio Solutions requiring employers to file amended H-1B petitions when an H-1B employee changes workplace locations.

The Ombudsman noted that large employers have expressed concerns that “the decision could cost them millions in additional legal fees and filing costs.”

L-1A petitions
In L-1A transfer petitions for managers and executives from a foreign office to a new office in the U.S., petitions face frequent RFEs and denials, based on an “undue emphasis” on whether the beneficiary is too closely connected to the hands-on production work or services offered by the petitioning entity, the Ombudsman found. The report also recommended USCIS provide guidance to L-1A adjudicators to address a new paradigm in which petitioning organizations have fewer layers of management between the beneficiary and line workers than in the past.

L-1B petitions
While noting that the L-1B RFE and denial rates, especially for extension applications, were troubling, the Ombudsman acknowledged that guidance on L-1B adjudication will take effect Aug. 31 and said it will withhold further comment until after implementation.

Low success rates for appeals
Less than 10 percent of appeals of business-related agency decisions to the Administrative Appeals Office are successful, causing delay and negative impacts on sponsoring employers and beneficiaries, the report said.

It noted that instead of utilizing the burdensome appeals process, employers often make calculated business decisions whether to abandon hiring a beneficiary or refile a petition, hoping that a different adjudicator will issue an approval based on the same documentation.

“Until petitioners become more confident that the agency’s administrative appeals process will afford them fair, meaningful, and timely review of the underlying decision, this course of action may remain underutilized,” the Ombudsman concluded.

Delays in Employment Authorization
In response to complaints about delayed issuance of employment authorization documents, the Ombudsman said the delays are seasonal, occurring during the summer months when it is high season for students applying for OPT and cyclical renewals by other applicants.

The Ombudsman recommended that the agency shift resources during peak season, conduct uniform sweeps of its EAD caseload as the 90-day adjudication window closes, and remind EAD applicants to file 120 days before their existing work authorization expires.

Employment-based immigrant visas
The Ombudsman cited ongoing backlogs for those awaiting immigrant visas in employment-based preference categories, and recommended USCIS publish data on the percentage of petitions adjudicated within the posted processing time.

“[A] more transparent methodology for calculating processing times would better inform applicants, manage expectations, and help conserve USCIS resources that currently are directed to responding to requests for case status,” the report said.

The Ombudsman also noted that the agency does not have a system to track when a petitioner chooses to upgrade or downgrade from one preference category to another, and suggested that a better tracking and communication system would benefit employers and assist the State Department in more precisely setting priority cut-off dates every month.

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