Month: September 2021

The backlogs at USCIS have been the subject of constant complaints and conversation in the immigration community. Clients call attorneys, send emails, and routinely ask when their case will be adjudicated. Clients are frustrated by the delays and attorneys are at a loss to predict the time it may take for any case to be completed.

The truth has been elusive, however, as a long-time practitioner I often tell clients that a standard green card case used to take 5 months to process “before the Trump Administration.” This benchmark, “before the Trump Administration,” has been a constant refrain as lawyers try to explain to clients how the delays are new, and the future is unclear.

On August 18, 2021, the GAO published a report, “U.S. Citizenship & Immigration Services: Actions Needed to Address Pending Caseload,” that essentially pulled back the curtain and provided us with some data, evidence, and guidance on how these delays started. The report detailed how USCIS has the exact same case load, about 9-10 million cases per year, but now has much longer delays.

The report states that USCIS processing delays have grown over 85% from 2015 to 2020. That means case processing has essentially doubled! This doubling in case processing times happened during the Trump Administration and has not yet been rectified.

What are the Reasons?
One reason for the delays identified by the GAO has come from new longer forms that request more information. While these forms gather more information, USCIS implemented the data heavy forms without hiring new staff. This means that the same number of staff are doing work which might take twice as long. Keep in mind that updated USCIS forms are released almost every six months as it appears that USCIS is on a mission to change and update forms constantly. This means that future delays are almost certain.

Another factor identified the GAO is the employee attrition rate, which is not corrected by new hires. In fact, the hiring process at USCIS and in my experience all of DHS can take forever. Keep in mind that an FBI background check is required along with credit checks and work history review.

Here’s the catch – a lot of immigration is political. During the Trump years the emphasis moved to political agendas such as the border and enforcement. As a result of the constant fear mongering from the Trump administration a media circus developed at the border. The Trump Administration then sent staff from across USCIS to the border to engage in credible fear interviews. A second, less well-known fact was the development of a USCIS enforcement priority team that assisted US ICE in identifying individuals for deportation.

Another policy change was the implementation of more RFE’s for clients in every type of case. The deluge of RFE’s and RFE responses caused a huge, new workload for USCIS staff.
The policy of more RFE’s was implemented under Trump and has recently been thrown out.

Both polices were new and removed critical resources from USCIS and the main mission to process immigration cases. In this way, the Trump administration broke immigration. Those diverted resources created conflicting agendas, and generally disrupted USCIS such that major delays were created and now remain as part of his legacy.

The GAO report does it’s best to tamely give us some insight into the changes and problems at USCIS. The new Administration must take on these changes and get this agency back on track.

Citations
U.S. Government Accountability Office. (2021, August). United States Citizenship &
Immigration Services: Actions Needed To Address Pending Caseload. (Publication No. GAO-21529). Retrieved from https://www.gao.gov/assets/gao-21-529.pdf

Author: Sumeet Lall, Esq.
Editor: Marisa Chavez

As the Budget Reconciliation vote gets closer it is imperative that stakeholders in the employment immigration system pick up their phones and start calling Congress. As of today, there is a small contingent in Congress who have recognized the need for new legislation to address the green card backlog and the need for a fix to the broken immigration system.  This group needs support from stakeholders to push this agenda forward.

As recently as last year several sources found that STEM companies were one of the single most recognizable elements driving the U.S. economy. In fact, one study found that 67% of U.S. jobs and 69% of the nation’s GDP (gross domestic product) are supported by STEM employers and STEM jobs, showing that this segment of the U.S. economy accounted for $2.3 trillion in federal tax revenue annually.  Additionally, STEM jobs are a high growth sector for new employment – many of these jobs are for skilled labor, individuals who do not have a bachelor’s degree. The Department of Labor has noted that the STEM positions pay higher wages and have more growth opportunities.

With the growth in this sector the U.S. has had to seek out talent from around the world.  Today the majority of STEM based foreign nationals living and working in the U.S. are from either India or China. These employees work for U.S. companies in a vast array of positions, from technology to health care to business. Most of these employees work under the H1B visa and have a long waiting period to obtain legal permanent residence.  The H1B system itself offers 85,000 visas each year to an applicant pool of almost four times that amount.  The annual lottery therein leaves out many qualified and skilled potential employees who have offers from U.S. companies.  Meanwhile the law has country limitations for legal residence, leaving long lines for India and China two countries that supply many of our STEM employees.

Let’s face it the current situation for H1B Visas and Indian nationals is untenable as they are forced into a system that doesn’t provide a reasonable path to residence.  Indian nationals make up a big group of employees who have been unfairly subjected to long waiting periods, well over ten years to obtain residence.  Public policy should consider the general fact that we want students who are educated in the United States, who then find U.S. employers to find a fast process to residence.  It simply makes sense.  Think about it, when college educated individuals get jobs in the U.S., they effectively enter the middle class, pay taxes, and contribute to society – it follows that they should also have a quick and reliable path to legal residence. Not a lottery system for visas and a residence process with interminable long waiting periods.

Ways to Fix the Backlog?

One idea floating around is an amendment to the Registry Law. This idea was first noted by David Bier, from the Cato Institute.  This Registry Law currently states that any individual who can prove they were present in the USA since January 1972, is eligible for a green card. The new proposal would amend Registry so that the active date will be 2011.  This law would include individuals who are on the H1B program who would qualify based upon physical presence since 2011.  While this proposal does not address the country specific backlog it is a way to amend a law that we have today and allow individuals who are both in-status and those without status to reap a huge benefit.  From a political viewpoint this might be enticing for different members of Congress who want to appeal to different groups.  The overall appeal is that it would be a quick political fix since it is a small amendment to an existing statute.

The Reconciliation Bill is coming for a vote on September 27, 2021.  This bill has specific rules attached to it such that it has a very high chance of being passed by both the House and the Senate.  Today several immigration plans have been floated as potential new laws to be included in the Reconciliation Bill – the Fairness in High Skilled Immigration Act from 2020 has been discussed along with a general amnesty and the Registry amendment.  While there are many possibilities it is crucial that you act by getting on the phone, so you can talk to your Representatives in Congress to explain your support for changes to legal immigration.

In Congress they have aides assigned to answer the phone so that they can track topics and provide information on what people in the district are thinking.  The point is that it works to call your Representative and Senator to tell them what you think.  It gives them an understanding of what people are thinking and influences how they vote.  Keep it short, make a good point and let them know that you want a change to the legal path to residence.  Find the number to contact your Senator or Representative at the websites listed below.

www.senate.gov

www.house.gov/representatives

Citations

Bier, David J. “Reforming the Immigration System: A Brief Outline .” Cato.org, CATO Institute, 11 Nov. 2020, www.cato.org/study/reforming-immigration-system-brief-outline. 

McEntee , Chris. “STEM Supports 67% of U.S. Jobs.” Eos, AGU News , 28 Jan. 2020, eos.org/agu-news/stem-supports-67-of-u-s-jobs. 

Table 1.11 Employment in STEM occupations, 2020 and projected 2030. (n.d.). [Table]. U.S. Bureau of Labor Statistics. https://www.bls.gov/emp/tables/stem-employment.htm

Author: Sumeet Lall, Esq.Editor: Marisa Chavez