At a Crossroad: Consular Options to Immigrate as USCIS Adjustment Backlogs Increase

In order to uphold the “integrity of our nation’s immigration system,” on October 1, 2017, U.S. Citizenship and Immigration Services (USCIS) began to phase-in a mandate of in person adjustment of status (I-485) interviews for employment based cases at USCIS field offices nationwide.   Previously, USCIS field offices would rarely interview an employment based adjustment applicant. Prior to 1992, however, the legacy Immigration and Naturalization Service (INS) would routinely interview employment based adjustment applicants.   So, there is some precedent for the policy.

On May 1, USCIS published its performance statistics related to adjustment of status applications for the first quarter of the 2018 federal fiscal year, which commenced on October 1, 2017. These statistics are just beginning to reflect the impact of these interview changes at the USCIS field office level. For initial comparison, however, it is obvious that staffing challenges for USCIS will become more dire:

Employment based adjustment applications approved – Service Center level

FY 2017 1st Q                                                                       FY 2018 1st Q

Houston                      47                                                      284      (504%)

Los Angeles                63                                                      121      ( 92%)

Miami                          11                                                       51     (363%)

New York                    110                                                    172     ( 56%)

In March of 2018, USCIS announced that it was testing a new method to calculate its processing times of various applications, including the I-485 adjustment application. USCIS created a new website page for reviewing the processing times of its forms.   This announcement came in the wake of a report from the U.S. Department of Homeland Security’s (DHS) Office of the Inspector General (OIG), entitled, “USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudicating Green Card Applications.”   The OIG report noted that:

1.            USCIS was not meeting its goal of adjudicating adjustment    applications in 120 days.

2.            Since fiscal year 2011, the overall average number of days it takes to complete adjustment applications increased to more than twice the goal.

3.            The published calendar date on the former processing time system had nothing to do with the actual receipt date of the applications by Immigration Service Officers (ISO). In addition, the date did not reflect how long an application was taking to be adjudicated by an officer at one of the 86 USCIS field offices.

A sample of current posted processing times for adjustment applications reflects the following, with the note excerpted below:

This time range is how long it is taking your office to process your case from the date we received it. We generally process cases in the order we receive them, and we will update this page around the 15th of each month. Please note that times may change without prior notice.

Brooklyn          13 to 20.5 months

El Paso             15 to 28 months

Houston           11 to 25.5 months

Detroit              7 to 15 months

Phoenix            14 to 22.5 months

Los Angeles     10 to 24 months

What should employers be doing with this information?

Due to the problems associated with international travel and delays in adjustment adjudications, it is critical to assess field office caseloads and processing times especially in comparison to consular immigrant visa processing. Employees engaged in international work for their U.S. employers often are unable to remain in the U.S. for extended periods of time waiting for work authorization and travel documents to be issued. An adjustment based work authorization/travel document combination card can easily take 4 to 5 months to adjudicate. In addition, with most adjustment applications taking at least a year, if not almost two years to adjudicate, a consular application process with all of its various steps can begin to look pretty attractive for some cases.

In comparison to the timeline above, consider the following recent time frame we experienced through a consular application filed with the U.S. Consulate in Cd. Juarez:

  • ETA-9089 approved 07/05/2017
  • I-140 filed 11/16/2017 approved 11/24/2017 with premium processing
  • National Visa Center fee bills dated 12/29/2017
  • Packet III submitted 01/29/2018
  • Appointment Notice:  April 2, 2018
  • Interview date:  May 18, 2018

So, about eleven months, but since the underlying nonimmigrant status allowing work authorization continued, the applicant did not have his/her international travel interrupted and the end result of an immigrant visa was achieved during a shorter time frame than most current adjustment applications reviewed by USCIS field offices.

This analysis requires constant updating and can change quickly, but it merits the investment of time to consider the best path with all facts on the table.


About The Author:

Kathleen Campbell Walker is a member of Dickinson Wright PLLC. She was national president of the American Immigration Lawyers Association (AILA) from 2007 to 2008. She is board certified in Immigration and Nationality law by Texas Board of Legal Specialization. In 2014, she was the recipient of the AILA Founder’s Award, which is awarded from time to time to the person or entity who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified before Congress on matters of immigration policy and border security. She served on the 2009 Independent Task Force on U.S. Immigration Policy of the Council on Foreign Relations chaired by Thomas F. McLarty III and Jeb Bush.