Reportedly, USCIS will soon announce the temporary furlough of the majority of its employees – 15,000 employees, or three-fourths of its workforce.

The furloughs will begin in August 2020 if the agency does not receive additional fiscal support.

While being called temporary, the head of the American Federation of Government Employees is concerned the reduction-in-force may become permanent and result in a USCIS “brain drain.” In recent months, USCIS has experienced a dramatic decline in revenue because fewer immigrant and non-immigrant petitions are being filed due to the COVID-19 pandemic, related travel restrictions, the uptick in Requests for Evidence (RFEs) on filed petitions, and recent Administration restrictions on legal immigration.

The agency has asked the Administration and Congress for relief: a $1.2 billion loan and an average 21% increase in fees to shore up their budget shortfall. [

As of now, neither has been instituted. USCIS had partly re-instituted premium processing, which collects an additional $1,440 fee per case. However, this apparently will not help enough.

Because USCIS is self-funded, any decrease in filed petitions and applications directly reduces its revenues. In FY 2018, there was a 17% decrease in petitions filed. Despite this, delays and backlogs continue to grow. Much of this is attributed to the same “extreme vetting” that may be continuing to reduce the number of cases filed, including more focus on small technical errors, the complex new public charge rule, and more RFEs. Beyond that, a hiring freeze has been in effect since February 2020 on most positions other than asylum staff, who are there to push cases through the process.

Jackson Lewis attorneys will continue to provide updates as the negotiations continue.

 

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.

 

 

Due to COVID-19, USCIS field offices have been closed for in-person services since March 18, 2020.  The closure will continue until on or about June 4, 2020 when USCIS hopes to re-open to the public.  In preparation for re-opening:

  • USCIS will send notices to applicants and petitioners with naturalization ceremonies or scheduled appointments that are affected by the temporary closure;
  • Asylum offices will send cancellation notices, automatically reschedule interviews and send new interview notices;
  • Once in-person operations resume, USCIS will automatically reschedule by mail cancelled Application Service Center (ASC) appointments such as biometrics appointments; and
  • Those with cancelled InfoPass or other appointments at the field offices must proactively reschedule those appointments through the USCIS Contact Center once the offices re-open.

USCIS has suggested that before calling the USCIS Contact Center, applicants or petitioners should check whether their local office has re-opened by visiting www.uscis.gov/about-us/uscis-office-closings.

USCIS is starting the year with a growing backlog of processing delays.

In May 2019, a bi-partisan group of Senators wrote to USCIS requesting information on why the service-oriented agency adjudicating immigration benefits, such as work authorization, is disrupting American businesses through administrative inefficiencies.

Here are some of the facts:

  • For FY 2018, the gross backlog at USCIS reached 5,591,839, representing a 69% increase since 2014 and a 29% increase since 2016;
  • Case completion per hour rates declined for 81% of benefit types between FY 2016 and FY 2018; and
  • Case completion rates for Form I-129 petitions dropped from 0.97 per hour to 0.64 per hour.

This translates into the following processing times (for non-premium processed cases) averaged across USCIS Service Centers as of September 30, 2019:

Nonimmigrant Visa Petition (I-129)                           3.7 months

Application for Advance Parole (initial)                   4.5 months

Application for Advance Parole (renewal)             10.3 months

Immigrant Visa Petition (I-140)                                  5.3 months

Employment-Based Adjustment (I-485)                 9.5 months

Extend/Change Nonimmigrant Status (I-539)       4 months

Employment Authorization (I-765)                            4.5 months

Naturalization (I-400)                                                     9.9 months

Waivers (excluding I-601A)                                          31.6 months

Some of the Administration’s new policies that have led to these increased processing times include the dramatic increase in Requests for Evidence (now at least 60% for H-1B cases alone), increased length and complexity of forms, increased security checks, and the I-485 in-person interview requirement for all employment-based petitions. If the new Public Charge rule goes into effect, it is expected to further increase processing times overall because of the complex calculations that will be required.

At the end of May 2019, the Government Accountability Office (GAO) agreed to analyze the USCIS backlog. At that time, the GAO said that it would take at least five months to gather a team to do this work. In the meantime, Jackson Lewis attorneys are available to assist you in creating strategies for dealing with the ongoing delays and backlogs.

A federal judge has sentenced Pradyumna Kumar Samal to more than seven years in prison, fined him $10,000, and ordered him to pay restitution for the taxes he stole. United States of America v. Samal, No. 2:18-cr-00214 (W.D. Wash. Sept. 20, 2019).

Samal, the ex-CEO of two IT staffing companies, was investigated for visa fraud by the Department of State and the Department of Homeland Security beginning in 2015. The evidence against his employment practices included emails, documents, and interviews with former and current employees and contractors. Samal fled the country during the investigation, and upon returning to the U.S. in 2018 he was arrested at an airport in Bellevue, Washington. Samal was charged with a multi-year visa-fraud that included a “bench-and-switch” scheme, exploitation of foreign national workers, and defrauding the U.S. government by submitting false and forged immigration application materials.

The fraud arose from petitions filed by Samal for close to 250 H-1B beneficiaries. The petitions stated that the foreign nationals would work at specific client sites and included forged documents from Samal’s clients (and some fictitious clients) supporting his assertions. The investigation showed that Samal was petitioning for employees he hoped to place with end clients, but he had no legitimate assignments for the beneficiaries when he filed the petitions. He was trying to eliminate “lag times” and gain a competitive advantage by having “H-1B beneficiaries” available for future assignments. Because he had no planned assignments for these foreign nationals, they often had to look for or wait for assignments after they arrived in the U.S. While they waited, Samal violated more immigration laws by not paying the foreign nationals – illegally “benching” them. Whether the foreign nationals eventually “found” work or not, they had to pay Samal a “partially-refundable ‘security deposit’ of as much as $5,000 for the visa filings” – yet another violation. Beyond the immigration violations, Samal also embezzled more than $1 million in withheld income that he never submitted to the government. Instead, he purchased luxury items and used the money for personal expenses.

Most IT consulting and staffing companies are engaged in legitimate immigration pursuits. For some time, USCIS has been focusing enforcement efforts on consulting companies that place their H-1B employees at client sites. This includes questioning whether computer programmers are performing in specialty occupations (and thus eligible for H-1B petitions) and demanding extensive documentation to prove that IT consultants are in bona fide employer-employee relationships with their H-1B petitioners.

Please contact a Jackson Lewis attorney with any questions about this case, the H-1B program, or USCIS.

 

 

The Department of State (DOS) has announced a significant retrogression from the July 2019 Visa Bulletin to the August 2019 Visa Bulletin of at least 3 years in many of the employment-based categories.

  • EB-1 retrogresses by almost 2 years for most countries to July 1, 2016, except India, which stays at January 1, 2015;
  • EB-2 retrogresses by almost 2 years from being current to January 1, 2017, for all other countries, while China and India advanced a bit to January 1, 2017, and May 2, 2009 respectively; and
  • EB-3 retrogresses by almost 3 years from being current to July 1, 2016, for all other countries, while India retrogressed by more than 3 years to January 1, 2006, and China advanced by 6 months to July 1, 2016.

USCIS has decided to implement the dates in the August bulletin now.

Individuals with pending adjustment of status applications can expect to continue in the process. Interviews will be scheduled, but cases will not be finally adjudicated until the priority dates become current again.

Charles Oppenheim, Chief of Visa Control and Reporting Division for the Department of State, generally predicted these retrogressions due to continuing increased demand. The hope is that the dates will return to the July 2019 level when the new fiscal year begins in October 2019.

Each month, to make its determinations for the Visa Bulletin, USCIS and DOS compare the number of visas available for the remainder of the fiscal year (ending September 30) with:

  • Documentarily qualified visa applicants reported by DOS;
  • Pending adjustment of status application reported by USCIS; and
  • Historical drop off rate (for example, denials, withdrawals, and abandonments).

DOS also publishes a “Date for Filing Applications” chart each month. The dates on these charts are more beneficial, but are used only if DOS and USCIS predict that the annual allocation of visas will not be used by the end of the fiscal year.  DOS announces each month (about a week after the Visa Bulletin is published) whether the Date for Filing chart can be used.  Although the Date for Filing charts have been used occasionally in the past, given the current circumstances, they likely will not be used before the end of this fiscal year.

If you have questions about how this retrogression affects green card strategies, please reach out to your Jackson Lewis attorney.

 

 

Long USCIS processing delays are now the norm for all types of immigration cases. Indeed, the delays have reached crisis levels. Processing times increased by 46% over the past two fiscal years and 91% since FY 2014.

In fact, even though applications declined by 17% in FY 2018, processing times continued to rise. In some cases, H-1B petitions can take up to a year for a decision. I-140 immigrant visa petitions that used to take about 3 months to process are now taking about 8 months. Naturalization cases used to process in 5 months, but now they are taking about 10 months.

These delays have important consequences. U.S. businesses are hurt when they cannot obtain work visas for necessary or key employees in a timely way. Foreign-national employees become disenchanted due to their inability to obtain LPR status and may leave the U.S. for better prospects. Families suffer economically when dependents cannot obtain work authorization. Vulnerable populations suffer when they cannot obtain protection under U.S. immigration laws.

Recent changes in immigration policies based upon the “Buy American, Hire American” executive order are contributing to the delays.

In a May 13, 2019, letter to the Director of USCIS questioning the delays, 36 members of Congress (representing both parties) pointed out that USCIS was created “to be a service-oriented, immigration service agency with the mission to adjudicate immigration matters to enable individuals to obtain work authorization, citizenship, humanitarian protection and other important services.” But the new mission statement issued by USCIS in early 2018 no longer emphasizes customer satisfaction but rather focuses on enforcement.

The May 13 letter is not the first time Congress has asked about the processing delays. The last letter on this subject sent to the Director earlier this year, however, came only from Democrats.

Along with Congress, the American Immigration Lawyers Association is working to hold USCIS accountable. If you have questions about adjudication delays, please reach out to your Jackson Lewis attorney.

Immigration case processing times have dramatically increased in the last few years, impacting U.S. businesses and immigrant families, often causing gaps in work authorization and even loss of employment. In a January 2019 Policy Brief, AILA (American Immigration Lawyers Association) opined, on the basis of USCIS data, that the Agency’s processing delays had reached “crisis levels under the Trump Administration,” noting that:

[t]hese ballooning delays leave families—including families with U.S. citizen spouses and children—in financial distress, expose protection-seekers to potential harm by bad actors, and threaten the viability of American companies facing workforce gaps.

The 2018 Homeland Security Report stated that at the end of FY 2017 (including President Trump’s first 9 months in office), there was a net backlog of 2.3 million cases – double the figure from FY 2016.

And Congress is taking notice. More than 80 Democratic members of the House of Representatives, in their oversight capacity, sent a letter to USCIS Director L. Francis Cissna expressing their “grave concerns” about the delays. Indeed, the Congressmen are suggesting that the delays themselves seem to be a policy goal, stating:

Clearly, policy changes implemented by the administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission. Rather than continuing to seek ways to simplify and streamline its benefit-delivery system, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications.

The Representatives want the backlogs to be reduced and have asked Director Cissna to answer a number of questions, including:

  • How are “extreme vetting,” in-person interviews for employment-based green cards, and the USCIS reversal of the deference policy regarding nonimmigrant visa extensions contributing to the backlog?
  • Why, when USCIS clearly needs more adjudicators, is the Agency requesting the transfer of $200 million of its own fee revenue over to ICE enforcement?
  • Why have processing times increased while case volume appears to be receding?

The backlog may be yet another reflection of Director Cissna’s new mission statement, issued in February 2018, echoing President Trump’s emphasis on enforcement. In that statement, the Director removed the emphasis on customer satisfaction (i.e., the satisfaction of petitioners and beneficiaries) and instead focused on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm . . . .”

In line with that mission, USCIS is planning on introducing a new Tip Form. The purpose of the new form is to facilitate the collection of information from the public regarding credible and relevant claims of immigration benefit fraud impacting both open adjudications, as well as previously approved benefit requests where the benefit remains valid. Once implemented, this form will create more work for an already overburdened agency and will likely lead to an increase in employer worksite investigations.

Although the ongoing government shutdown is rooted in an immigration matter – the “wall” – its effect on other immigration processes is somewhat limited. Fee-funded activities are not affected, which means that USCIS offices will remain open, interviews and appointments will continue as scheduled, and most petitions and applications will continue to be accepted and processed. Because the Department of Labor’s funding has already been appropriated, LCA and PERM cases will not be affected.

The most noticeable effect from a domestic immigration perspective may be that the E-Verify program will not be operational. During shutdown it will not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve E-Verify Tentative Nonconfirmations (TNCs).

To minimize the impact caused by the government shutdown:

  • The “three-day rule” will be suspended; and
  • Time period for resolving TNCs will be extended.

Employers are warned not to take any adverse action against employees while an E-Verify case remains in an interim or limbo status. Please click here for E-Verify’s full announcement regarding the shutdown.

Other programs that will not operate during the shutdown due to lack of continuing funding include:

  • EB-5 Immigrant Investor Regional Center Program
  • Conrad 30 J-1 Program for Physicians
  • Immigrant visas for Non-Minister Religious Workers

For now, it seems that passport services will remain available and U.S. Embassies and Consulates abroad will continue to provide services to U.S. citizens, but other services may be limited. Jackson Lewis will continue to follow these matters and provide updates as they become available.

As part of the Trump Administration’s “Buy American, Hire American” Executive Order, the State Department’s Bureau of Consular Affairs (BCA) is joining with the Department of Justice’s Civil Rights Division to combat both visa fraud and potential discrimination against U.S. workers. The partnership between the two agencies is based upon a Memorandum of Understanding (MOU) that focuses on information-sharing.

The Employee Rights Section (IER) of the Civil Rights Division enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) on citizenship or national origin discrimination in the hiring, firing, or recruiting of employees. Traditionally, this agency focused on discrimination against foreign-born workers, but the Trump Administration has shifted the focus to the impact of visas on the U.S. worker. The BCA, among other things, strengthens U.S. border security by reviewing and adjudicating immigrant and non-immigrant visa applications abroad.

Under the MOU, the agencies “will share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.” The MOU also says that, although injured parties can file complaints with the Civil Rights Division (the IER), the IER may initiate independent investigations “if there is reason to believe unlawful discrimination has occurred.” This agreement is part of the Department of Justice’s Protecting U.S. Workers’ Initiative, launched in February 2017, to defend U.S. workers from discrimination by employers who favor foreign visa workers.

This recent collaboration between the DOJ and BCA is another part of the Trump Administration’s efforts to scrutinize H visa applications. In August 2017, the Foreign Affairs Manual was changed to encourage Consular Officers to consider whether there might be some aspect of fraud being committed as they adjudicate H-1B and other visa applications. With the new agreement in place between the BCA and the IER, any information gathered through personal interviews of visa applicants at the Consulates can be transmitted easily not only back to the USCIS for possible revocation of a petition, but also to the IER for possible investigation.

If you have any questions about visa interviews abroad and their possible ramifications, please contact your Jackson Lewis attorney.