On Apr 13 2022 by Andrew J. Zeltner

Lengthy Immigration Processing Times Are Impacting U.S. Competitiveness – Is Help on the Way?

United States Citizenship & Immigration Services (“USCIS”) has recently announced a limited expansion of expedited processing for critical permanent residence categories that are utilized by highly skilled foreign nationals. In addition, USCIS has indicated a commitment to provide faster overall processing times for cases that are not eligible for expedited processing. USCIS has committed to increasing capacity, enhancing its technology framework, and expanding staffing in the hopes of making needed improvements to case processing times over the next several months. This is a welcome development as the USCIS backlog has surged from 5.7 million applications at the end of FY2019, to approximately 9.5 million cases that currently await review. While the Biden Administration did not create the backlog, this announcement is a hopeful sign that the Administration will begin to seriously address these issues, as it settles into its second year in office.

When expedited processing will become available is not entirely clear, however, USCIS is expected to open this important door before the end of the government’s fiscal year in September. Currently, senior-level executives and managers applying in the EB-1(C) multi-national manager category, along with (for example) key scientists and researchers whose cases fall within the National Interest Waiver category, face prolonged backlogs that can extend to over two years before their cases are adjudicated by USCIS. Once implemented, USCIS will now commit to adjudication within 45 days for an additional government filing fee of $2,500. USCIS is also funded through filing fees and does not rely upon congressional appropriations, thus the additional filing fees should allow the agency the opportunity to raise the revenue required to produce more reasonable processing times.

Currently, these prolonged delays can pose serious challenges for individuals to maintain lawful status and work authorization in the U.S, and also increases uncertainty for employers concerning the ultimate success of the green card process and the ability to ensure employee retention. The long processing times also delay the ability to qualify for the important benefit of adjustment of status portability, which places restrictions on one’s ability to seek new employment opportunities or even accept a promotion with a current employer, thereby leaving many talented employees in a state of “career paralysis” while waiting for a USCIS adjudication. 

In fairness, the last several years have posed unique challenges for USCIS that have paved the way for these current challenges. The Trump Administration did not prioritize a well-functioning Immigration Service and supported the overall dysfunction of the agency through willful neglect and the outright implementation of as many roadblocks as possible (such as requiring more green-card applicants to attend personal interviews and issuing requests for additional evidence at a vastly higher rate before completing case adjudications) for those wishing to work in the U.S. and contribute to the fabric of our economy. When one then factors in the unique challenges posed by the last two years of the global COVID pandemic, it is not difficult to see how basic agency functions, which should include providing reasonable and reliable case processing times, have gone by the wayside.

While implementing expedited processing will not solve all of the problems that impact the agency, it is certainly a step in the right direction and a welcome recognition that the current state of affairs is untenable for both employers and employees. As noted, USCIS is planning a phased implementation of expedited processing that will also include eligibility for some additional categories. In addition, premium processing of changes from one temporary status to another will be implemented during this fiscal year, but only for applications in the student and exchange visitor categories. USCIS will adjudicate these filings within 30 days for an additional filing fee of $1,750. Premium processing of Employment Authorization Applications for certain work experience programs for international students are another welcome inclusion. Regrettably, change and extension applications for family members of work-based visa categories are not slated for expedited processing until FY2025.

Despite these targeted improvements, unreasonably long adjudicatory wait times continue to weigh on our highly skilled immigrant workforce. This serves to reduce our nation’s competitiveness in the global marketplace, especially at a time when we face unprecedented labor shortages throughout our economy. Indeed, a predictable byproduct of an immigration system that fails to function at a basic level will only lead to continued offshoring and to more of our best and brightest looking for opportunities to begin or continue their careers abroad.  Indeed, as the last two years have indelibly taught us, many jobs can simply be performed anywhere—all you need is a reliable internet connection. While these USCIS actions represent a welcome beginning, the Biden Administration will need to ensure that it proceeds steadfastly and efficiently, to effectuate meaningful improvements. Our country and our new immigrants simply deserve it.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the April 13, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.