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Just as the Biden Administration is proposing increased funding for USCIS to help reduce the agency’s backlog, USCIS is announcing  future new actions to improve processing times.

USCIS:

  1. Plans to expand staffing, improve its technology, and establish new internal cycle time goals (the amount of time it takes to process a typical case). As the cycle times reduce, so should the backlogs. New cycle time goals include: two months for I-129 forms (Petitions for Nonimmigrant Workers), three months for forms I-765 (Application for Employment Authorization), I-131 (Advance Parole), and I-539 (Application to Extend/Change Nonimmigrant status), and six months for forms I-485 (Application to Register Permanent Residence or Adjust Status) and I-140 (Immigrant Petition for Alien Worker). All of this will be without premium processing which currently costs an additional $2,500 in filing fees.
  2. Will introduce the optional premium processing service for more types of forms, including I-765s, I-539s, and I-140s for Multinational Executives and Managers and National Interest Waivers. Congress gave USCIS the ability to do this in 2020, but advocates have been waiting since then for the USCIS to implement the new premium processing by setting out the specific fees and adjudication times for each new type of process. It seems that this is now happening. USCIS has said the new premium processing will be phased in starting with the I-140s. The premium processing filing fees for these additional forms will be in the $1,500 to $2,500 range.
  3. Will introduce a new rule: Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants. The agency has already begun streamlining EAD processes and providing some expedited renewals for healthcare and childcare workers. USCIS plans to build on this to ensure that individuals do not experience gaps in employment authorization.

Once implemented, these measures should provide needed relief for employers and employees who have been struggling with long processing delays and gaps in employment authorization. If you have questions about the new goals and processes, Jackson Lewis attorneys are available to assist and will provide updates as they become available.

One of the themes of this year’s USCIS Ombudsman Annual Report is that the agency has been through “a year like no other.” USCIS faced “unprecedented challenges.” With the COVID-19 pandemic came temporary office closures, reduced capacity, and budget cuts. This led to previously unseen levels of backlogs and deepening financial problems, according to the report.

The staff of the USCIS Ombudsman fields requests for help (as an avenue of last resort), is a force multiplier in disseminating immigration information, and gives recommendations to the USCIS about ways to improve services.

According to the report, USCIS made changes to adapt to COVID-19 to increase efficiency that may well continue: expansion of electronic filing and processing capabilities, increased outreach to stakeholders, and improved coordination between USCIS and other government agencies.

The report focused on the need for USCIS to speed up its transition to a digital environment. Initiated 15 years ago, the transition has been slow. As a result, during the pandemic, employees had problems accessing and returning paper files, and the lack of product lines that could be fully processed electronically added to the backlogs.

Another major issue that was exacerbated by COVID-19 is USCIS’ financial insecurity. Because the agency depends solely upon fees for revenue, the resources available to it can be unpredictable. During the COVID-19 pandemic, when the number of filings dropped, major furloughs were threatened. USCIS managed to avoid furloughs by instituting other budget reductions. USCIS used premium processing fees for operations (generally, those fees must be set aside for the digital environment project). Congress passed legislation that would allow USCIS to add more types of cases to premium processing (including I-765 Applications for Employment Authorization). The agency has not instituted those because it does not yet have the staff to accommodate the timelines. While it may take years for USCIS to re-achieve full staffing (after a hiring freeze), the report noted that more premium processing eligibility can be expected.

Moving forward, the Ombudsman recommended USCIS continue some of its pandemic policies:

  • Expansion of remote work, prioritization of online filing, and expansion of the digital environment project
  • Generous interview waiver policies
  • Drive-thru naturalization oaths
  • Reuse of biometrics
  • Remote appearances of attorneys and other representatives
  • Creation of more e-tools
  • More public engagement

Jackson Lewis attorneys will continue to monitor and report developments at USCIS. Please contact us with any questions.

While it typically uses the “Final Action Dates” chart for accepting adjustment of status application filings, U.S. Citizenship and Immigration Services (USCIS) has announced that for October 2020, it will allow employment-based adjustment of status applicants to file based upon the U.S. Department of State’s (DOS) October “Dates for Filing” chart.

This means that individuals will be able to file their adjustments in October 2020, even though their Green Card cases may not be adjudicated for years – until they reach their “Final Action Dates.” The DOS Charts can be found here. The USCIS page confirming that adjustment applications can follow the “Dates for Filing” chart can be found here.

The main advantage to filing adjustments is that 180 days after filing, applicants become portable – meaning that they can change jobs within the same occupational category without having to have a new PERM case filed. Similarly, those who file may maintain their underlying visa statuses, although they do not have to. Instead, they can remain in the United States while their cases are pending and rely on EADs and advance parole for work authorization and travel.

Of course, applicants are not the only beneficiaries of this big push forward. USCIS has been suffering. A decrease in filings has led to a severe budget deficit. The agency had planned to furlough two-thirds of its workforce on October 1, 2020. These additional adjustment of status filings may help the agency defray costs with a much-needed injection of cash, the greater because new, increased filing fees will go into effect on October 2, 2020. After October 2, 2020, adjustment of status application fees will no longer include employment authorization and advance parole applications. There will be separate fees for those applications totaling more than $1,000. In addition, children under 14 will no longer have reduced fees – further driving up fees for families applying for green cards. Another fee-producer is in the fact that the “Dates for Filing” chart provides a much more advanced available filing date for Employment-Based Third-Preference (EB3) applicants than for Second-Preference (EB2) applicants. That will give employers an option to file an amended I-140 petition, each carrying a $555 filing fee, along with the adjustments of status. The agency stands to receive a multimillion-dollar cash infusion.

If you have questions about the October 2020 Visa Bulletin, please reach out to your Jackson Lewis attorney.

 

Advocacy groups have filed suits challenging the USCIS fee increases scheduled to take effect on October 2, 2020.

The fee increases are not equal across the board. Certain types of business immigration petitions have been targeted for large percentage fee increases: 51% for TNs and E visas, 75% for L petitions, and 53% for O petitions. Further, the increase in naturalization fees and the addition of a nonwaivable asylum fee has sparked opposition. Naturalization fees are going from $640 to $1,170 – an 83% increase. The new asylum application fee will be $50. The United States has never before charged a fee for asylum and will join only three other countries that charge fees for this benefit: Iran, Fiji, and Australia.

The challenges to the fee increases are as follows:

  • A Massachusetts nonprofit was the first to file to prevent USCIS from raising the naturalization fee, contending the fee adds a non-statutory requirement for naturalization — an illegal “wealth test.”
  • In the Northern District of California, Immigrant Legal Resource Center et al. v. Wolf challenges all of the fee increases on the grounds that the fees were proposed and issued under those (Kevin McAleenan and Chad Wolf) not properly appointed to their positions, and therefore, the new rule is unlawful. That suit also contends the naturalization fee increase and asylum fee harm the most “vulnerable” in our society.
  • In the third suit, in the United States District Court for the District of Columbia, Northwest Immigrant Rights Project et al. v. Department of Homeland Security et al., an attorney representing the advocacy group plaintiffs notes, “DHS’s rule is cruel and unlawful. DHS should not use its budget as an excuse to price immigrants out of the opportunity to receive asylum and citizenship ….” The suit challenges not only the fee increases, but also USCIS’ implementation of changes to the fee waiver rules that makes it much more onerous for applicants to obtain fee waivers.

The challenges to the fee increases are reminiscent of the challenges to the Administration’s proposed changes to the Public Charge Rule. Like the fee increases, the new Public Charge Rule was seen as a “wealth test” and “backdoor and unlawful approach in the interest of changing the face of immigrants allowed into this country ….”

USCIS is expected to issue new forms by October 2, 2020, to accompany the new fees. If you have any questions about the fees, Jackson Lewis attorneys are available to assist you.

 

 

 

 

USCIS has announced that, due to an “unprecedented” increase in revenues, the source of which is unclear, it would not go forward with the furloughs previously scheduled for August 30, 2020 – at least not until the end of the fiscal year (October 1, 2020).

The USCIS Deputy Director for Policy, Joseph Edlow, stated this will come at a cost. USCIS will be cutting support activities, and anticipates that this will lead to longer wait times for case inquiries and longer processing times for adjustment of status and naturalization cases (a problematic issue in an election year). Average wait times for calls to USCIS to fix errors made by the agency have increased under the Trump administration.

The agency did note, however, that naturalization ceremonies will continue.

Since June 2020, USCIS has been threatening to furlough 13,000 employees (two-thirds of its workforce) due to a purported but unexplained budgetary shortfall for this fee-based agency.

The previous deadline for receipt of $1.2 billion from Congress to stave off the furloughs was August 30, 2020. The House had approved some emergency funding (including raising the cost of premium processing to $2,500 per case), but the Senate has yet to act.

Congress had wanted to avoid this magnitude of operational cuts. USCIS has reiterated that a return to “normal” operations cannot occur without the requested financial assistance. Keep in mind that even before these financial issues were raised, USCIS already had unprecedented delays and backlogs.

As the new October 1, 2020, deadline approaches, Jackson Lewis attorneys will continue to provide updates as they become available.

USCIS confirmed that its planned furlough of 70% of its workforce (13,400 employees) will be postponed at least until the end of August. The ostensible reason for the furlough was a budget shortfall, even though USCIS is a fee-based service that historically has covered costs.

The furlough announcement, when coupled with the anti-immigration agenda from the White House, caused some to question the claim that USCIS had of a $571-million deficit for FY 2020. Agency and indeed recent reports show that USCIS will end the fiscal year with a budget surplus large enough to keep employees on the payroll for now. In the meantime, Congress will have to time to act to provide emergency relief for FY 2021. As of July 10, 2020, the surplus was reportedly $121 million.

Senators Patrick Leahy (D-Vt.) and John Tester (D-Mont.) wrote to Acting Secretary of Homeland Security, Chad F. Wolf, when they learned of the surplus, which was in “stark contrast” to the previous deficit prediction. The Senators implored the agency not to put more American jobs “on the line” at this time of “unprecedented unemployment.” They made it plain that it was not just the employees who would be harmed.

[T]housands of United States Citizens, employers, and students rely on USCIS work, including members of the military. The loss of these valuable jobs will also cause hardship to the communities where these federal workers live and work – communities already struggling with the pandemic.

The USCIS Deputy Director for Policy, Joseph Edlow, stated that the changed forecast, occurring after an investigation, is due to increased revenue over the past few weeks. This revenue could be the result of Cap H-1B filings and the opening up of premium processing. At the end of March, USCIS suspended premium processing. On June 1, 2020, the agency slowly started resuming it. By June 22, 2020, premium processing became available for all I-129 petitions, including cap-subject petitions. At $1,440 for each petition, this resumption could account, at least partly, for the increased USCIS revenues. Given the current processing delays and the pent-up demand for premium processing, an increase in revenue could have been expected – and the fear of an almost-total halt in immigration processing alleviated.

USCIS union members (members of the American Federation for Government Employees) speaking to reporters explained that while the pandemic has decreased petitions, the agency has been crippled by “previous policy decisions that have restricted legal immigration.” In 2018, there was 17% decrease in petitions and applications. Since then, the public charge rule and increases in vetting, denials, requests for evidence, interviews, delays, and backlogs have led individuals and companies to file fewer petitions and applications. For some companies, it has become easier and more predictable to move jobs out of the United States into more welcoming environments. The impact of such a move is the opposite of what is needed in the U.S. economy’s recovery.

Senator Leahy expects to address the USCIS’ 2021 deficit with the next COVID-19 relief package.

If you have any questions, please contact a Jackson Lewis attorney.

 

 

 

Since May, USCIS has been threatening furloughs of three-quarters of its workforce in August if it does not receive a $1.2 billion loan and an average 21% increase in fees to take care of its budget shortfall. Reportedly, more than 13,000 of the 20,000 USCIS employees who work on citizenship and visa processes will receive furlough notices if emergency funding is not forthcoming. Further, some notices may have already been received for a late-July furlough.

Apparently, USCIS sent formal notification to the union representing USCIS employees that up to 70 percent of the agency’s employees could be furloughed as of August 3, 2020. Furloughs that are expected to last more than 30 days require this sort of formal notice. Therefore, the projected furloughs will not be short term. The president of the union that represents 2,500 USCIS employees in Washington, D.C. stated the obvious:

It is not in the best interest of the American people to allow such a failure – which would have a substantial impact on millions of legal immigrants, permanent residents and US citizens and would be detrimental to American businesses, educational institutions, the economy and our law enforcement and health care systems ….

USCIS has been told that any additional funds should not burden U.S. taxpayers. The agency recognizes that any loan would have to be repaid. In other words, to make up the shortfall, the funding will have to come from increased fees, pushing the entire burden onto immigrants, employers, and those seeking naturalization. If the increased fees do not discourage immigration, the even longer delays that will result from the furloughs certainly will. An estimated 860,000 individuals were scheduled to naturalize this year – but, through the combined impact of the pandemic and the proposed furloughs, those individuals may not become citizens before the November election.

The funding problem at USCIS is not simply due to COVID-19. Although the decrease in filings associated with the pandemic may have been the final straw. Budget problems at USCIS have persisted for several years. Unfortunately, the needed funding appears to have become yet another political battleground. Adding another 13,000 employees to the ranks of the unemployed is not likely to help the U.S. economy.

Jackson Lewis attorneys will continue to monitor this situation and provide updates as they become available.

Premium processing will resume in stages according to USCIS. Cap-subject H-1B petitions will be included only in the last phase.

June 1, 2020: USCIS will accept requests for premium processing for all eligible Form I-140 Immigrant Visa Petitions.  EB1-C Multi-National Manager or Executive and EB2 National Interest Waiver petitions are not eligible for premium processing.

June 8, 2020: USCIS will accept upgrades to premium processing for all I-129 petitions filed before June 8, 2020 except for cap subject H-1B petitions.

June 15, 2020: USCIS will accept concurrent premium processing filings and upgrades to premium processing for cap-exempt H-1B petitions (including Conrad and Interested Government Agency Waivers) filed on or after June 8, 2020.

June 22, 2020: USCIS will resume premium processing for all other Form I-129 petitions (upgrades and concurrent filings) including all cap-subject petitions.

USCIS is attempting to gradually reintroduce premium processing. Even so, the schedule is subject to change. The $1,440 fee for each premium processed case may help USCIS with its current budget shortfall.

Premium processing was suspended on March 20, 2020 due to COVID-19. Petitioners who filed Form I-140 and Form I-129 petitions requesting premium processing before that date but received no action and a refund, may refile their Forms I-907 consistent with the above timeline, barring any changes.

Jackson Lewis attorneys will continue to monitor this timeline.

USCIS has announced that, due to the COVID-19 pandemic, it has suffered a steep decrease in revenue and, without assistance, might run out of funding this summer. The agency has asked Congress for $1.2 billion in emergency relief (as a loan) along with a 10% COVID-19 surcharge (to repay the loan) on top of a proposed, but not yet implemented, fee increase.

USCIS is 96% fee funded. Its last major fee increase was in FY 2017. By late-2019, USCIS proposed another fee increase, stating that without it, the agency would be underfunded by approximately $1.3 billion per year.

The 2019 proposal called for a 21% weighted average increase. Some petitions or applications would see a fee decrease, but others (such as Form I-129 petitions and naturalization petitions) would see substantial increases. For instance, the filing fee alone for an H-1B petition would go from $460 to $560 (a 22% increase). An O petition would increase by 55%, to $715, and an L petition would increase by 77%, to $815. Naturalization application fees would increase by 83%, to $1,170, and, for the first time, DACA renewals and asylum application fees would be imposed. Due to the comments and objections USCIS has received, the proposed increase has remained pending – perhaps until now.

In addition, all of the Trump Administration’s policies enacted to increase the scrutiny given to immigration applications and, ultimately, reduce the level of immigration and naturalization appear to be working. It is reported that there has been a “precipitous drop in applications for green cards, citizenship and other programs ….” Everything from the skyrocketing number of Requests for Evidence (RFEs) and denials, to the furor over the changes in the Public Charge rule, to a 45% rise in processing delays may have convinced some individuals and employers the new uncertainties make it pointless to apply at this time. On top of that, the heightened scrutiny and additional requirements (such as more in-person green card interviews) have forced USCIS to hire more employees that it now is having trouble supporting. In addition, USCIS temporarily suspended all premium processing, thus eliminating a $1,440 fee per petition that must usually provide a good revenue stream.

Jackson Lewis will continue to follow Congress’ reaction and provide updates as they become available. Please contact a Jackson Lewis attorney with any questions.

 

 

Historically, the U.S. Department of Labor’s Wage and Hour Division has been the primary auditor of companies using H-2B visa to hire temporary, seasonal workers. But amid debates over the cap on H-2B visas and an expressed need for more H-2B workers  the USCIS’ Fraud Detection and National Security unit (FDNS) is getting into the mix and conducting unannounced site visits.

Until now, FDNS, according to its website, has been conducting compliance-review site visits on religious worker petitions, H-1B petitions, and L-1 petitions. President Donald Trump’s “Buy American, Hire American” executive order, which directed the Secretaries of State, Labor, and Homeland Security to consult to revise rules and guidance “to protect the interests of United States workers . . . including through the prevention of fraud and abuse” in immigration, appears to have prompted greater sharing of compliance reviews between the DOL and the Department of Homeland Security. USCIS already has set up an anonymous tip line to receive information about fraud and abuse of the H-2B program that may be a source for decisions on H-2B site visits.

Under H-2B regulations, employers must retain information regarding recruitment for a three-year period. DOL audits of H-2B employers generally focus on payroll records, evidence of recruitment and results, and verification of the number of H-2B workers employed. The FDNS site visits reportedly are focusing on similar items, but may be more extensive. If you have H-2B workers, ensure you are complying with all H-2B requirements, including the recording-keeping requirements.

If you have questions about how to prepare your company and your staff for a possible H-2B audit by either DOL or FDNS, please reach out to your Jackson Lewis attorney.