Ombudsman Reports On Inconsistency of USCIS Adjudications

“To improve fairness, consistency, and transparency in adjudications,” the USCIS Ombudsman has recommended that USCIS conduct a formal rulemaking in regards to the adjudication of petitions for individuals of extraordinary ability in the sciences, arts, education, business or athletics (EB-1-1), outstanding professors and researchers (EB-1-2), and exceptional ability professionals (EB-2) in the sciences, arts, or business. In the interim, the Ombudsman also recommends that additional guidance be provided to the public and adjudicators on the application of final merits determinations.

The application of law to the adjudication of merits-based green card petitions has never been straightforward. It has been my experience over the years that the agency tends to go through phases as far as how difficult a standard is applied in such cases. A great deal of subjectivity is involved. To give clients an edge, I’ve always been of the opinion that no matter what the particular merits of a petition are, you want to present to an adjudicator a petition that is organized and easy to understand, to perhaps get an edge over other petitions in the adjudicator’s queue.

The Ombudsman’s report and recommendations are revealing.  After researching the matter, the Ombudsman reports finding widespread confusion of the public and officers on how to respectively present and adjudicate such petitions. For instance, the Ombudsman states, “Stakeholders report that petitions adjudicated under the I-140 policy memo have resulted in decisions that are unfair, opaque, and inconsistent.”

Ouch. The Ombudsman here refers to USCIS’s confusing 12-22-1- memo entitled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions..”, which is related to the Ninth Circuit Court of Appeals decision, Kazarian v. USCIS. The memo has become a keen example of bureaucracy in its not-so-finest hour. Hopefully a rule-making will help clean things up a bit, but I’m not holding my breath.

It doesn’t need to be this confusing.  Consider the individuals under consideration for immigration benefits. Extraordinary aliens. Outstanding professors and researchers. Individuals of exceptional ability.  These are people that can help build the local economies and bring jobs to this country. These are people with choices of where they can live and build businesses in the world. These are people that build the American dream. Nitpicking over the adjudication of such petitions does little to help American business, economy or even world-image.