On December 29, 2011, the DHS Ombudsman issued a report highlighting the inadequacies of the current extraordinary abilities visa and outstanding researcher/professor visa adjudication process. Additionally, the report recommended numerous improvements to the adjudication process.
The report highlighted that many employers and potential applicants have complained about their inability to truly understand the requirements of the visas because of the subjectivity associated with the current adjudication process. The Ombudsman states:
Our nation’s immigration laws recognize the importance of attracting individuals of extraordinary ability from around the world to the United States to continue their work in the arts, athletics, business, education, healthcare, and sciences. USCIS issued policy guidance which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to Form I-140 employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.
The Office of the Citizenship and Immigration Services Ombudsman met with stakeholders to discuss their concerns, reviewed filings and adjudications, examined the applicable law, engaged with USCIS operations and headquarters personnel. Stakeholders report that petitions adjudicated under this I-140 policy memo have resulted in decisions that are unfair, opaque, and inconsistent. USCIS Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions but instead changed when ISOs made a final merits determination. Based on its findings, the Ombudsman’s Office makes these recommendations to improve fairness, consistency, and transparency in adjudications of extraordinary ability employment-based petitions.
Additionally, the Ombudsman suggested improvements to the EB 1-1 visa and EB 1-2 visa applications by:
- Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations; and
- In the interim, provide public guidance on the application of a final merits determination; and
- In the interim, provide ISOs with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions
Lets hope that the USCIS listens to the Ombudsman’s recommendations and improves the adjudication of the U.S.’s most appealing immigration visa.