The 2014 USCIS Ombudsman Annual Report, released on June 27, highlighted several ongoing problems with the adjudication of H-1B and L-1 petitions and with responses to service requests.
Stakeholders primary concern with adjudication is the issuance of unnecessary and unduly burdensome Requests for Evidence (RFEs). Currently, 43 percent of L-1A petitions and 50 percent of L-1B petitions receive an RFE. In June of 2013, USCIS issued a Policy Memorandum addressing the issuance of RFEs stating that an RFE should be issued only if, “an officer determines that the totality of the evidence submitted does not meet the applicable standard of proof.” Despite this clarification, the issuance of RFEs has remained high and in some cases, such as the L-1B, has actually increased. For FY 2013, the RFE rate for L-1B petitions was 51.5 and 41.4 at the California Service Center and Vermont Service Center respectively. In the first two quarters of FY 2014, the rate was 50 percent for California and 56.7 percent for Vermont.
Despite the high rate of RFE issuance, USCIS approves 94 percent to H-1Bs, 83 percent of L-1As, and 67 percent of L-1Bs indicating that USCIS needs to better articulate evidentiary requirements and legal standards.
To that end, the Ombudsman recommended that USCIS expand training on the legal standard of “preponderance of the evidence” and institute a review process of all RFEs. USCIS responded by piloting a new training program in 2012, however, the program still only covers the legal standard in the abstract without any hypothetical examples and refresher courses are not required for adjudicators. USCIS declined to institute a review process for RFEs stating that such a process would be too time consuming and resource intensive.
The Report also noted that there are “pervasive and serious problems” with service requests. Presently, service requests are often responded to using general templates which provide little or no information except that the specific case remains pending. This leads stakeholders to submit multiple service requests for the same case and/or seek assistance from the Ombudsman directly. Approximately 70 percent of requests submitted to the Ombudsman were submitted by stakeholders who had previously received an uninformative answer to a service request.
In March of 2012, the Ombudsman issued the following recommendations for addressing the issues with service requests:
- Implement a national quality assurance review process for service requests;
- Establish a mechanism whereby USCIS can provide stakeholders with multiple; responses (e.g. initial, follow-up, final) to a single service request
- Expand self-generated e-Requests to all form types;
- Implement a mandatory review of certain service request responses; and
- Post service request reports on the USCIS website and standardize the use of those reports so as to identify spikes, tends, and other stakeholder issues.
USCIS responded by expanding the use of e-Requests and forming a working group to review the service request process. To date, there is no national quality assurance review process and attempts to utilize a follow-up mechanism has resulted in many requested being deemed “closed” without the stakeholders’ issue being addressed. As such, multiple service requests continue to be submitted for individual cases.