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Solutions to Combat USCIS Processing Delays

19 Jul

On July 16, 2019, the U.S. House of Representatives held a hearing asking U.S. Citizenship & Immigration Services (USCIS) to explain the increase in immigration case processing times and denials. 

Since USCIS fiscal year (FY) 2017 there has been a 67% increase in case processing times, resulting in 2.3 million delayed cases at the end of FY 2017, more than a 100% increase over one year. And despite a decrease in the number of H-1B petitions filed in FY 2018, processing times have continued to slow.

Part of the processing slowdown is because of an increase in requests for evidence (RFE). The RFE rates for H-1B petitions rose from 22.3% in FY 2015 to 38% in FY 2018 and stood at 60% in the first quarter of FY 2019 although there has been no change in H-1B criteria under the law.  

Finally, although the USCIS Ombudsman office said that an employment authorization document (EAD) should take no longer than 90 days to process, because individuals and employers could face adverse consequences, processing of EADs have continued to slow drastically and can now take up to 8.5 months.

USCIS’s own policy changes have driven these unprecedented delays.    

  •  USCIS no longer gives deference to its own prior approvals of when adjudicating extensions of work visas; 
  •  USCIS now requires interviews for all applicants seeking permanent residence based on employment, rather than as in the past scheduling interviews only for those with criminal or other issues or if randomly selected;
  •  USCIS has significantly increased the number of RFEs on petitions and applications across the board; and 
  • USCIS has limited status inquires. For example, for EADs being processed at the National Benefits Center and pending as of July 18, 2019, USCIS allows status inquiries only if the EAD application has already been pending for 8 months!

Unfortunately, the data shows USCIS has not complied with its new 2018 mission statement of “efficiently and fairly adjudicating requests for immigration benefits while protecting Americans.” If the system worked efficiently and fairly, more people would be inclined to follow the rules. And if the system worked efficiently and fairly, U.S. employers would be able to rely on being able to employ qualified workers and compete competitively in the global market.

So how do these delays impact the U.S. economy, our public health and our children? Given the aging population of the United States, immigrants are a huge driving force behind our economic engine. Foreign physicians can treat U.S. citizens, including those in health shortage areas where patients must wait longer periods to see a doctor. Persons with extraordinary ability in the arts and sciences can help make the United States and possibly the world a better place. Teachers in shortage teaching areas, such as Science and Math, can help educate our children and improve their chances for success. Low skilled workers can fill jobs that U.S. citizens do not want. And entrepreneurs can start new companies creating new job opportunities and contributing to our nation’s overall economic growth. Increased processing delays, as significant as the ones we’ve seen this past year, will impede our nation’s economic progress and further encourage companies that rely on foreign nationals to look at relocation options outside of the United States.

So what can be done? First, take a deep sigh. Plan ahead and file as early as possible, especially if premium processing is not available, such as for EAD applications and applications for permanent resident (green card).

Second, if premium processing is available and you can afford to do so, pay for premium processing. With the payment of an additional filing fee of $1,410, you should receive a response within 15 days rather than several months. That response could be an approval, denial or RFE, but at least you can move forward.

Third, if your case is still pending and a response is needed immediately, request expedited processing. Unlike premium processing where USCIS must respond within 15 days, USCIS has discretion on whether to approve a request for expedited processing.

If your case is still pending, you can contact the USCIS Ombudsman office. The Ombudsman will contact USCIS for you and USCIS is supposed to respond to the Ombudsman office within a few days, but keep in mind that doesn’t mean that USCIS will. You also can contact your U.S. Representative or Senator and ask him or her to contact USCIS for expedited processing. Keep in mind that some Congresspersons are not helpful whereas others are more so. If all else fails and you have a compelling case, you can sue the government to compel the government to process and adjudicate the case.

USCIS processing delays are endemic. But that doesn’t mean you don’t have options if you are facing delayed processing. Contact your Congress member and let him or her know that the United States is a nation of immigrants and we need USCIS to follow its own mission statement by processing filings efficiently and fairly. We must hold USCIS accountable for the sake of the United States.