Message from the Citizenship and Immigration Services Ombudsman
As the seventh Citizenship and Immigration Services Ombudsman recently appointed by the Biden Administration, I am honored to submit this 2021 Annual Report to Congress. This Report, required to be presented each year on June 30, is intended to alert Congress to some of the most pervasive issues affecting the administration of immigration benefits at U.S. Citizenship and Immigration Services (USCIS).
This Report reflects the outstanding efforts of a dedicated team of public servants who provide well-researched, balanced, and actionable recommendations, informed by our office's conduit to the immigration community and a deep understanding of the work of the agency.
I want to thank and acknowledge the talented stewardship of Deputy Ombudsman Nathaniel Stiefel and the work of our agile and capable staff, who seamlessly pivoted operations to a remote environment during the coronavirus (COVID-19) pandemic. Their spirit and commitment allowed the office to continue to thrive in carrying out our statutory three-part mission. This message will outline the major developments and future priorities in these three mission areas.
THE PAST YEAR
Requests for Case Assistance. The unprecedented challenges and uncertainties revolving around seeking and maintaining immigration status during the pandemic underscored the need for the office's continued support to the public as an avenue of last resort. In response to the disruption of services and growing backlogs at USCIS, applicants and others came to us when resolution eluded them with the agency. The CIS Ombudsman received 14,618 requests for case assistance in 2020, with requests escalating sharply in the second half of the year—a 25 percent increase over our annual average, with no corresponding increase in staff or other resources. The surge resulted in delays in our office's ability to respond timely to these requests. Eliminating this backlog and scaling up our capacity to respond to case inquiries are top priorities; we recognize that each request represents a journey interrupted in pursuit of a better life in the United States.
Stakeholder Engagement. Despite the inability to travel due to COVID-19 restrictions, the office engaged with a greater number and more diverse set of stakeholders than ever before. We took advantage of a silver lining: the public's increased comfort with the use of remote meeting platforms and other modalities as a means of effective communication. We held more than 125 stakeholder engagements in 2020—a record high for our small office. These engagements allowed us to feel the pulse of trends and new challenges across the country and, in conjunction with our casework, distill issues and serve as a "canary in the coal mine" for USCIS. We can, and regularly do, bring these issues to the attention of the agency and urge action before problems escalate. A new series of webinars we are hosting with colleagues from USCIS to address pressing COVID-related and other public information needs has enjoyed record attendance and engendered a greater sense of collaboration than ever before. As a result, there is a growing recognition that our office can serve as a force multiplier to the agency's goal of disseminating accurate information and help to set customer expectations. Our work together to identify and address customer service challenges has gained new momentum.
Recommendations. In addition to studying the important and long-standing systemic issues identified in our Annual Report, our Policy Division made suggestions to the agency throughout the year to enhance administrative processing and help both the agency and customers adapt and innovate. The agency responded positively to many of our suggestions, in particular those related to delays in issuing receipt notices at lockbox facilities and the impact of the biometrics requirement for the extensions of derivatives of H, L, and E visas. The recent implementation of these processing improvements provided relief to thousands of USCIS customers.
THE WAY FORWARD
As detailed in this Report, USCIS faces unprecedented challenges this year on virtually every front—from financial pressures to substantial backlogs across applications and petitions of all types. We applaud the numerous innovations the agency put in place in response to the pandemic—from drive-through oath ceremonies to remote interviews—and urge the agency to continue identifying opportunities for efficiencies without undermining integrity. Encouraging the agency to fully transition to a digital environment and to build upon the innovations created in response to COVID-19 is a theme of this Report. It is my expectation that our office will follow suit in upgrading our own operations.
As we approach Fiscal Year (FY) 2022, we are developing a strategic plan that will guide our efforts to improve our customer service through use of technology and ensure that our services are in sync with the advancements made by the agency. We will set clear expectations with our stakeholders as to when we can help and when we cannot, so that we can maximize our attention on those cases where we can make a difference. We are working to redesign our website to make it easier for the public to submit a request for case assistance and learn about casework trends, engagement activities, and the office's priorities. This effort will also include a revision of our Form DHS-7001, Request for Case Assistance.
Another strategic priority will be to improve our case work response time. Those seeking assistance from our office have already exhausted numerous avenues for assistance and often waited months or years for relief. Further, we can only achieve our paramount role in identifying trends and informing the agency about problems if we are current in responding to requests for assistance. Our office should serve as an ambassador for the use of USCIS' electronic tools and help customers successfully navigate their own immigration experience. We also are working diligently to expand access to the office's services, particularly for vulnerable and underserved populations, such as those with limited English proficiency and individuals applying for humanitarian benefits. This will be a continued focus for our office and will greatly enhance our understanding of the issues and their impact on the public.
On the research and policy front, we will be more proactive. We will resume the practice of releasing studies and recommendations throughout the year and increase the cadence by which we share trends with the agency, provide relevant and actionable solutions to problems, and offer help to the agency and our departmental and interagency partners.
President Biden has signaled his intent to make immigration laws and policy work for the betterment of our Nation and to create a more responsive and transparent immigration system. The goals of the Administration's Executive Order 14012, Restoring Faith in our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, and the express commitment to identify barriers that impede access to immigration benefits—squarely align with our office's mission. The Executive Order invites enhanced collaboration within the agency on many fronts. I look forward to joining the considerable progress already underway and contributing our office's unique strengths and perspectives to this historic effort.
While I am new to the position of CIS Ombudsman, I am no stranger to the complex challenges facing governments dealing with immigration, having worked for USCIS, its predecessor the Immigration and Naturalization Services, the U.S. Immigration and Customs Enforcement, the Department of Justice, the United Nations High Commissioner for Refugees, and the International Organization for Migration. As a public-facing program office that abides by the ombudsman principles of independence, impartiality, and confidentiality, our strength derives from our work with the full range of stakeholders—individuals, employers, advocates, government partners, and Members of Congress—who care deeply about the immigration agenda.
This Annual Report's recommendations are intended to provide both Congress and the public with insights about some of the most pressing challenges within our immigration system and ways to approach them that are constructive, actionable, and reflect the spirit and purpose for which our office was created.
Sincerely,
Phyllis A. Coven
CIS Ombudsman
Office of the Citizenship and Immigration
Services Ombudsman Department of Homeland Security
cisombudsman@hq.dhs.gov
Executive Summary
The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) 2021 Annual Report covers calendar year 2020, as well as key developments in early 2021, and contains:
• An overview of the CIS Ombudsman's mission and services;
• A review of U.S. Citizenship and Immigration Services (USCIS) programmatic and policy challenges during this reporting period; and
• A detailed discussion of pervasive problems, recommendations, and best practices in the administration of our immigration laws.
KEY DEVELOPMENTS AND AREAS OF FOCUS
USCIS in the Time of COVID-19: A Year Like No Other
The coronavirus (COVID-19) pandemic created unique challenges for USCIS, a public-serving entity that typically conducts thousands of in-person appointments each day. Temporary office closures and a lack of product lines available for end-to-end electronic processing put strains on USCIS' ability to adjudicate remotely. Upon resuming operations at a reduced capacity, USCIS had substantial backlogs of in-person appointments that needed rescheduling. The pandemic also exacerbated USCIS' preexisting financial issues and decimated carryover funding needed to maintain its operations. The agency avoided furloughing its employees through spending cuts, including descoping contracts, ordering all components to reduce their budgets, and imposing a hiring freeze that would last into Fiscal Year (FY) 2021. A court-enjoined fee rule contributed to further fiscal complications. The lingering effects of temporary office closures, insufficient revenue, and budget cuts continue to impact processing times and customer service functions. The pandemic demonstrated the importance of a robust public engagement effort and the need for an adequate emergency preparedness plan. Creative strategies implemented during the pandemic also offer cost-effective long-term solutions for better balancing of workloads and overcoming resource constraints.
NTA Issuance: Problems Persist
USCIS policy guidance establishes the circumstances under which the agency issues Notices to Appear (NTAs), and it typically reflects the enforcement priorities of the Department of Homeland Security (DHS). In 2018, USCIS issued such guidance that made more noncitizens subject to removal proceedings. The 2018 guidance also expanded USCIS' role in preparing and serving NTAs on noncitizens and on the immigration courts directly and without deference to U.S. Immigration and Customs Enforcement (ICE). Although this guidance has been rescinded, and USCIS has reverted to following guidance established in 2011, its implementation accentuated long-standing systemic issues, such as NTA service errors, jurisdictional problems, and an overall lack of transparency in the process. In addition, lengthy USCIS delays in adjudicating collateral benefit requests for those in removal proceedings translate into inefficiencies for immigration courts and a lack of finality for noncitizens. These issues, which create administrative burdens for the government and due process consequences for the noncitizen, require attention regardless of changes made to enforcement priorities. Future guidance should aim to enhance coordination between USCIS, ICE, and the Department of Justice (DOJ) to address operational challenges. USCIS can resolve its own recurring service issues by developing guidance to define when in-person service is not practicable; serving NTAs via certified mail; and updating the appropriate case management system to reflect that an NTA has been issued. To increase administrative efficiency, DHS, in conjunction with DOJ, should consider a regulatory change that would provide immigration judges with authority to adjudicate immediate relative petitions.
The Wedding Bell Blues: Processing of Removal of Conditions for Conditional Permanent Residents Based on Marriage
Congress enacted the Immigration Marriage Fraud Amendments Act of 1986 (IMFA) to deter marriage-based immigration fraud. The law imposes an initial two-year period of conditional residence on certain spouses and dependent children and establishes a procedure for removing the conditions through the filing of the Form I-751, Petition to Remove Conditions on Residence. The IMFA also mandated specific processing timeframes for the interview and adjudication of the Form I-751. However, due primarily to competing priorities, USCIS' current Form I-751 processing times fail to comply with the statutory timeframes. Recent modifications made to the interview waiver criteria and decreased completion rates have exacerbated delays. Current wait times not only contribute to numerous challenges for Conditional Permanent Residents (CPRs), such as lapses in status documentation and delays in naturalization, but they also dilute the legislative intent of the IMFA and have resulted in unintended consequences that Congress had hoped to avoid.