U.S. Citizenship and Immigration Services (“USCIS”) recently cancelled its plan to furlough over two-thirds, or 13,400 of its 20,000 employees. The furlough was expected to cause USCIS to all but stop processing immigration benefits, creating a crisis for the U.S. immigration system. While this is welcome news, USCIS has also announced that it will be making “drastic cuts” that will impact agency operations until Congress is able to provide a long-term fix to its budget crisis.
Unlike most federal agencies, USCIS is primarily self-funded by money it generates from filing fees. Since 2017, the number of petitions filed with USCIS has decreased exponentially. In fact, it is estimated that from 2017 to 2019 the number of petitions filed with the agency decreased by 900,000. See here. According to USCIS, this decrease continues to climb, especially in light of the COVID-19 pandemic. In a statement made to Congress in May 2020 in support of a request for a $1.2 billion bailout, USCIS Deputy Director for Policy Joseph Edlow confirmed that the agency had seen “a 50% drop in receipts and incoming fees starting in March,” and predicted that this drop would persist through the end of the fiscal year. According to USCIS, this decrease would likely lead to a massive budget shortfall that would affect the agency’s ability to operate. When Congress failed to grant the funds requested, USCIS announced that furloughs would be necessary. These furloughs were originally supposed to start at the beginning of August, but were later pushed back to August 30, 2020. On August 25, USCIS announced it would not implement the furlough due to a “modest increase” in revenue as well as “unprecedented spending cuts.” While future furloughs are still possible, the cost-savings measures implemented by USCIS are certain to impact operations. As a result, foreign nationals and their employers should expect increased processing times and fewer case support services, as well as potentially other consequences as explained herein.
- Processing Time Delays
USCIS expects the cost savings measures it has recently taken to cause delays in case processing. Though it is impossible to predict exactly how long processing times will be delayed, and whether some applications will be delayed more than others, there are a few things to keep in mind that might ease some applicant’s concerns. For instance, timely filed extension applications for most non-immigrant visa types, including, among others, H-1Bs, O-1s, TNs, and L-1s, are automatically granted a 240-day employment authorization extension. Thus, for instance, if an L-1A manager timely files an application to extend his/her L-1A status, then he/she can continue living and working in the United States for 240 days or until his/her application is adjudicated (whichever happens first).
There is also at least some relief from the expected delay in processing times for H-1B workers who wish to change employers. Under the H-1B portability rules, H-1B workers who seek to change employers do not have to wait for USCIS to adjudicate their application before they can start working for the new employer. In fact, the employee can start working for the new employer as soon as USCIS receives the H-1B change of employer application. H-1B workers who wish to take advantage of these portability rules should always keep in mind that if their H-1B change of employer application is denied, then they cannot continue working for the new employer.
These and other examples show that applicants who wish to enter or remain in the United States with lawful immigrant or non-immigrant status might have options, notwithstanding any expected delays in processing times.
- Possible Suspension of Premium Processing
Operational cuts could require the agency to suspend premium processing for any petitions filed after the furlough begins. Premium processing is an optional service offered by USCIS, which allows expedited case processing within 15 days for certain types of filings in exchange for an additional fee of $1,440. Premium processing is a revenue-generating service, so it may still remain in place unless the cost savings measures implemented render USCIS unable to meet the 15-day turnaround. In fact, due to increased petition processing times via regular processing, petitioners may be forced to pay the additional $1,440 filing fee in order to receive timely decisions.
This expedited service is vital for some, such as employers looking to hire new employees, who need an answer from USCIS within a more definite timeframe, or in certain instances, foreign nationals needing to travel. Without premium processing, petitioners are left with very few options for expediting their petitions. For instance, petitioners could file an expedited request, asking USCIS to expedite the adjudication of their petition for an immigration benefit. Even though expedited requests are highly discretionary and adjudicated on a case-by-case basis, petitioners with compelling reasons should consider filing such requests if the premium processing service is suspended.
- Decrease in Customer Service
Employers and foreign nationals should expect it to become increasingly difficult and burdensome to speak to a customer service representative regarding the status of their cases or to wait for a response to a service request placed through one of the USCIS Contact Center’s digital self-help tools. USCIS relies on contractors to provide many of these services, and it has announced that one of its cost-savings measures will be to descope federal contracts. Therefore, with the scaling back of these contracts, support services will likely only be skeletal until a more permanent solution to the USCIS budget crisis is in place.
- Change In Adjudication Standards (Possible, Though Unlikely)
USCIS’ adjudication standards have become increasingly stringent in the past few years, which has led to a substantial increase in requests for evidence (RFEs) and denial rates. Notably, by applying a more stringent standard and prolonging the adjudication time for petitions, USCIS does not receive more in fees, and instead, the agency expends an incredible amount of time, energy, and resources adjudicating each case. One way to mitigate the budget shortfall would be to return RFE rates back to where they were a few years ago. However, USCIS appears poised to continue with its heightened level of scrutiny at the cost of processing delays and operational cuts.
About the Author
Paxton D. Endres is an Associate in Dickinson Wright’s Phoenix office where he practices Immigration, Commercial Litigation, and Family Law. Paxton can be reached at 602-285-5090 or pendres@dickinsonwright.com and you can view his bio here.
