Opportunities to streamline Immigration processing
The new era ushered in by the Biden administration brings with it encouraging signs that the government, including USCIS, is starting to emphasize operational efficiency in its policies and practices, focusing on building a fair and accessible system of legal immigration. For example, in his first 100 days in office, President Biden has revoked the Muslim and African travel bans and preserved Deferred Action for Childhood Arrivals (DACA). However, while off to an strong start, the new administration’s favorable attitude toward immigration is facing challenges in its implementation, from USCIS delays in issuing receipt notices to insufficient staffing at U.S. consulates abroad that appear to be a holdover from the prior administration.
Many in the immigration community welcome the new administration’s perspective on immigration. In our experience, also, we believe several “smaller,” practical changes need to be made to the U.S. immigration system for foreign nationals to fully realize the promises of the administration’s “larger,” philosophical positions on immigration. To this end, we describe below a few of these practical changes, focusing on USCIS and employment-based immigration. Our hope is that by addressing these obstacles, USCIS and the other components of the U.S. immigration system will be empowered to rise to their lofty missions, and that foreign nationals will have access to an understandable, fair and streamlined immigration system.
Shorten USCIS Delays
USCIS’ case processing times had been steadily creeping up even prior to the outbreak of Covid-19. Average processing times increased 61 percent between 2016 and 2020. Many of these delays were self-inflicted by USCIS under the previous administration which sought to make the system less accessible and more burdensome for foreign nationals – changes that also made USCIS less productive. During this time frame we noticed significant delays in the issuance of Receipt Notices and the adjudication of most petitions and applications, including Employment Authorization Documents.
The Biden administration has implemented a significant step in reducing major delays for certain heavily used employment-based categories is the reinstatement of the Deference Memo. We applaud USCIS’ resumption of deference being applied to prior approvals when considering requests for extensions in certain employment-based categories. This policy change could result in the issuance of fewer resource- and time-consuming Requests for Evidence (RFEs).
Also on May 3, 2021, USCIS announced a notable efficiency-enhancing policy change that suspends the biometrics requirement for spouses of work-visa holders who file Form I-539 to extend or change their nonimmigrant status. For a two-year period beginning May 17, 2021, USCIS will suspend the biometrics requirement for H-4, L-2, and E-1, E-2, and E-3 categories of Form I-539 applications if they are:
- pending on May 17, 2021, and have not yet received a biometric services appointment notice, and
- are new applications received by USCIS from May 17, 2021, through May 23, 2022.
An additional process improvement we would urge USCIS to consider is eliminating in-person interviews for employment-based Adjustment Of Status (AOS) beneficiaries, which were only recently added and have only served to compound the processing delays. Due to these delays, applicants have been forced to file extensions of their AOS based Employment Authorization Document (EAD) and Advance Parole (AP) that are only issued in 1 year increments. USCIS currently processes such AOS based EAD and AP extensions at no additional cost as USCIS originally anticipated AOS applications within one year. These extensions are not only an inconvenience to the applicants, but incrementally increase the workload of an already overworked and understaffed USCIS. A word to the wise would be for USCIS to either start issuing such documents with a 2-year validity or meet their original anticipated timeline of adjudicating the Adjust of Status applications within a year. This would be especially significant in the coming months because we are anticipating the approximately 200,000 unused family-based visa numbers from fiscal year 2020 may likely be applied towards oversubscribed employment-based categories.
The intention behind these and other changes at USCIS should be to improve access to and navigability of the U.S. immigration system for legal employment-based immigration, rather than to build speed bumps and obstacle courses.
The $350 million that President Biden has indicated he would request in his first budget will help USCIS modernize systems and reduce backlogs, but money alone may not be enough to address the now-systemic reductions in processing capacity. We urge USCIS to continue to seek efficiency-boosting improvements to its processes and policies.
Improve USCIS Communication with Stakeholders
A truly laudable change would be for USCIS to improve the transparency of its communication with foreign national applicants and immigration attorneys. We along with many others experienced the effects of a considerable communication breakdown in October, when several Form I-485s (Application to Register Permanent Residence) were rejected by the USCIS Texas Lockbox facility as the result of an internal policy change that was not communicated effectively to applicants or the immigration law community. This breakdown in communication has further fractured the psyche of foreign nationals, who have always complied with all laws and were suddenly left doubting the legal immigration process, their trusted legal advisors and worse yet the coveted “American Dream”. These Form I-485 rejections that came over 120 days later in certain instances, could have resulted in family members’ Priority Dates (and ultimately, the issuance of their Green Cards) being separated by several years’ time. Organizational transparency and clear communication of USCIS’ internal policy shift would have saved USCIS many hours of lost productivity that resulted from it needing to address its shortcoming and invite re-submissions of the rejected I-485 applications. This additional stress was the last thing the human mind was forced to endure in the midst of a deadly pandemic.
Historically, USCIS has collaborated with its various stakeholders going beyond the federally mandated comment period prior to initiating any broad policy changes. This professional courtesy was severely lacking with the previous administration and consequently a lot of their policies were deemed improper by various courts for not meeting the minimum requirements. One anecdote, I hear often and am particularly proud off, is when our principal attorney Mr. Harry Gee, Jr., a legend in Houston Immigration Law circles, suggested at a local stakeholder meeting that having attorneys submit G-28’s on blue paper, would make such applications visually stand out to the adjudicators. This suggestion was implemented by USCIS nationally and is still recommended by USCIS as a best practice.
Expand Premium Processing Service
In 2020, Congress enacted the Emergency Stopgap USCIS Stabilization Act to address USCIS’ budgetary shortfall which in our opinion was badly mismanaged. A clear example of USCIS’ mismanagement of funding opportunities was the temporary suspension of premium processing option for prolonged periods almost every year for the last several years. From our perspective the filing fees generated from premium processing requests is a high value revenue stream that could have at the very least, eased the financial constraint that USCIS is currently facing. USCIS is presently putting a lot of the blame on Covid-19, rather than more appropriately acknowledging the productivity-reducing effects of its own actions over the past few years. The Emergency Stopgap USCIS Stabilization Act permits USCIS to increase fees for its Premium Processing Service and to expand the service to additional form types. This provision is a bit of a double-edged sword, in that increased fees for foreign nationals and employers are not wonderful, but the increased revenue would help USCIS make infrastructure improvements that could, in turn, increase its efficiency and effectiveness. In October 2020, USCIS increased the Form I-129 Premium Processing fee from $1,400 to $2,500, while their ancillary services for this additional application steadily deteriorated as we have been experiencing delayed issuance of standard notices while the faxed notices (one of the ancillary benefits of premium processing) has become sporadic. Gee & Zhang encourages USCIS to expand Premium Processing (with reasonable fees) to more form types including EB-1C for multinational managers and executives as well as dependent applications. With the increased costs it would be expected that USCIS also provide additional ancillary features like advanced case tracking, streamlined customer service inquiries, to name a few. Doing so would benefit foreign nationals, the U.S. companies that employ them, hence, the U.S. economy overall.
Resume/Increase Consular Processing Capacity
As a combined result of Covid-19 and the indirect consequence of travel bans, more than 75% of U.S. consular posts abroad remain at least partially closed, or processing only limited visa classifications, drastically limiting foreign nationals’ ability to attend the interviews necessary to travel to the U.S. The State Department’s reduced processing capacity was also compounded by the Trump administration’s 2017 16-month hiring freeze for consulates abroad.
A direct result of the COVID-19 pandemic was the serious backlog in consular non-immigrant visa processing. A temporary creative approach to policymaking in the age of Covid-19 would be for the State Department to consider renewing certain visa types within the U.S., automatically extending specific expiring employment-based visa categories or even mail-in visa extension options for certain high-risk regions. Such a compassionate adaptation would allow foreign nationals to travel abroad for family and other emergencies without the added burden of scheduling and attending consular appointments. This creative option, even if temporary, would protect the health and safety of consulate staff by the reduction of in-person interactions for visa appoints necessitated primarily due to COVID-19 related travel emergencies.
Build USCIS Back Better
Even though USCIS has many challenges due to years of neglect and misguided policy making, our intention is not to disparage the agency, but rather to emphasize the many opportunities available to enhance its character as an agency that functions as a service-oriented organization rather than an authoritative bureaucratic machine operating with a binary “approved or denied” enforcement mandate. Last week alone our optimism rang true with the Department of Homeland Security reinstating the “Entrepreneur Parole Program”, Employment Authorization for Individuals with final orders or Removal as well as eliminating the need for redundant biometrics for certain dependent extensions. Also, last week we were pleasantly surprised with the announcement that Mr. Alejandro Mayorkas, head of the Department of Homeland Security, is delivering a keynote address at the American Immigration Lawyers Association (AILA) virtual conference in June 2021. This is a positive step by the agency to open communication channels with the immigration community to facilitate an informed and cooperative process that includes stakeholders moving forward. As always, Gee & Zhang continues to work from within the U.S. immigration system to effect positive results and life-changing outcomes for our clients.
The author of this article, Dhiraj Suvarna, is a Houston immigration attorney at Gee & Zhang. Our firm will update our website as significant developments occur.