John Valdez’s Legal Blog

The USCIS has a very nice feature in its system called the CIS Ombudsman.  This person examines the way the USCIS adjudication process is working, issues criticism when appropriate, and makes recommendations to increase service to non-citizens.  Of course, if the USCIS officials do not agree with the Ombudsman, they may not make any systematic changes.

 A case in point involves the delayed issuance of some employment authorization documents, known as EADs.  Under the government’s regulations, the USCIS is required to issue the EAD within 90 days of the filing of the application for this document.  The USCIS has come up with policies that allow it to take more than 90 days to adjudicate such an application in certain circumstances.  For example, the USCIS stops the clock when it issues a request for evidence.  The 90 day clock resumes from where it left off after the requested evidence is received.  In the case of a request for initial evidence (evidence missing from the application), the USCIS does not even start the 90 clock until the evidence is received. 

The Ombudsman recently made recommendations to improve the EAD adjudication process because of a significant number of cases where adjudication exceeded, wrongly, 90 days.  Unfortunately, in a Memorandum just issued, the USCIS found that delayed issuance of EADs is not a “significant” issue because, according to its calculations, these cases “constitute only 1.3% of the total applications.” 

Of course, 1.3% of the more than a million EAD applications submitted each year still represents many thousands of cases, which means many people are harmed by delays.  The EAD is a very important document, since without it most applicants cannot work!  During my years in practice, I have had many clients who were ready to pull their hair out in frustration because the government was not timely adjudicating their EAD applications. 

Although the USCIS stated that EAD delays did not constitute a significant issue, in the Memorandum it does state that it will try to comply with some of the Ombudsman’s recommendations, including some involving the release of more public information on the issue of EAD adjudications.  On the whole, though, I don’t think the USCIS is doing enough to solve the problem.  One way to improve the situation would be to automatically issue a temporary EAD, perhaps limited to three months, when the application has been pending for 90 days.  Currently there is method to apply for a temporary EAD, but many non-citizens have difficulties pursuing this process, and sometimes it takes much too long.  An automatic issuance of the temporary document would be much more efficient.  I seriously doubt that such a policy would harm national security, while it would alleviate the monetary and emotional stress of those victims of slow adjudications.

If you have a problem with any immigration issue, let us know.  The immigration attorneys at Smith & Garg, PC would like to assist you.