. . . MARCH 2019 EDITION
The "Invisible Wall"
USCIS Processing Times Now at "Crisis Level"
Policy Changes Transform Agency
from Service-Oriented to Enforcement-Driven
The American Immigration Lawyers Association (AILA) recently analyzed published USCIS data for fiscal years 2014 through 2018 and found a crisis-level of delays in the agency's processing of applications and petitions for immigration benefits under the Trump Administration. While perhaps no real surprise to foreign nationals and their lawyers waiting for cases to be decided, this evidence-based report reveals an agency that is laying brick after brick in the Trump Administration's "invisible wall," a wall that is curbing legal immigration in the United States. Moreover, these delays are harming families, vulnerable populations, and U.S. businesses that depend on timely adjudications. Here are some of AILA's findings:
- The overall average case-processing time surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.
- Processing times for four of the five highest volume case types (I-130, I-485, I-131, N-400) increased more than 25 percent from FY 2017 to FY 2018.
- USCIS processed 94 percent of its form types—from green cards for family members, to visas for human trafficking victims, to petitions for immigrant workers—more slowly in FY 2018 than in FY 2014.
- Case-processing times increased substantially in FY 2018 even as case volume appeared to markedly decrease.
Other agency data lay bare a USCIS "net backlog" exceeding 2.3 million delayed cases at the end of FY 2017. This total amounts to more than a 100 percent increase over the span of one year, despite only a 4 percent rise in case receipts during that period.
In addition to processing delays, over the past two years USCIS (and other agencies) have introduced numerous changes that also have functioned as "bricks" in the Trump Administration's growing "invisible wall." In its April 2018 report, AILA highlighted dramatic changes in policy and practice by USCIS that increasingly have shifted its focus toward immigration enforcement. These new policies and practices slow and decrease legal immigration to and in the United States, fuel case backlogs, and contravene Congress's intent that USCIS function as a service-oriented immigration benefits agency. Some examples are:
- USCIS rescinded longstanding guidance that directed USCIS personnel to give deference to prior determinations when adjudicating nonimmigrant employment-based extension petitions involving the same positions and the same employer;
- The Administration overhauled refugee case adjudications, bringing many of these applications to a standstill;
- USCIS implemented an in-person interview requirement for all employment-based green card applications and refugee/asylee relative petitions, without meaningful justification.
Moreover, in February 2018, USCIS stripped the phrase "nation of immigrants," as well as the reference to applicants and petitioners as "customers" from the agency's mission statement, further signaling its shift from a service-oriented to an enforcement-oriented agency. Other changes in 2018 also were implemented, including:
- A new "Notice to Appear" policy that threatens to profoundly escalate the number of denied applicants and petitioners placed into deportation proceedings;
- A new policy enhancing the likelihood that foreign students and exchange visitors could face long-term bans on re-entering the United States for committing even inadvertent and minor status violations;
- In concert with ICE, USCIS began setting "deportation "traps" where ICE arrests spouses of U.S. citizens who appear at a USCIS office for an interview in connection with their I-130 case;
- USCIS adjudicators were authorized to deny certain cases without first allowing applicants the opportunity to provide additional supporting evidence.
Congress intended USCIS to function as a service-oriented agency that efficiently processes immigration-related applications and petitions, enabling individuals to obtain work authorization, citizenship, humanitarian protection, and other vital benefits, and enabling U.S. employers to fill critical workforce gaps. Indeed, the agency charges high filing fees for cases and is not affected by government shutdowns. But, ballooning USCIS processing times coupled with other policy changes leave families — including families with U.S. citizen spouses and children — in financial distress, exposing vulnerable protection seekers to danger, and threatening the viability of American companies. Congress and the public need to hold USCIS accountable.
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Department of State's "Invisible Wall"
Recent data released by the Department of State reveal that it too is laying brick after brick of an invisible wall that is curbing legal immigration to the United States. Visa inadmissibility statistics in FY 2018 reveal an uptick in just one year of almost 10,000 visa denials on public charge grounds (3,237 in FY 2017 vs. 13,450 in FY 2018); almost 3,000 more smuggling-related denials (2,521 vs. 5,379); and almost 100,000 more denials where the consular officer believes that the foreign national is ineligible to receive a visa (often for documentary reasons). Unlike many denials issued by USCIS, which can in many cases can be appealed or even litigated, consular officer decisions are nonreviewable with limited exceptions.
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New I-539 Form Must Be Used
Starting on March 11, 2019
USCIS announced that it has revised Form I-539, Application to Extend/Change Nonimmigrant Status, and that starting March 11, 2019, it will only accept the new version of the form. A new Form I-539A, also effective March 11, replaces the amendment pages normally used for children. (Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.)
The most significant change to the new form is the requirement that every co-applicant pay a biometrics fee and attend an ASC (Application Service Center) appointment, regardless of age. AILA has requested that USCIS delay implementation for 90 days, but as of late February, the new form and biometrics requirement remain in place.
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Proposal to Rescind H-4 Work Authorization
Pending at Office of Management and Budget
It looks like DHS is close to publishing a regulation that will eliminate the eligibility for employment authorization of certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. Commonly known as the H-4 EAD rescission regulation, the rule was sent to the Office of Management and Budget (OMB) on February 20, 2019, and is currently pending review. OMB review is the last hurdle in the regulatory process before a notice of proposed rulemaking is published in the Federal Register and open for public comment. It is expected that the rule will be published as a proposal and thus will not take effect until finalized by DHS, a process that typically takes several months.
There have been some 90,000 approved applications for H-4 work authorization since the original 2015 rule was created by the Obama Administration. Work authorization for H-4 dependents helps alleviate financial pressures of H-1B families that would otherwise have to manage on a single income. However, Save Jobs USA, a group composed of laid-off computer workers in California who claim their jobs were filled by programmers from India on H-1B visas, filed a lawsuit in 2015 to block the rule. That case remains pending before the U.S. Court of Appeals for the District of Columbia. An impending court deadline may be the reason why the administration is pushing forward the change at this time.
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DOS Offers Guidance to Derivative
Beneficiaries Completing Form DS-160
How a derivative beneficiary (of an immigrant petition) should answer the question on a DS-160 nonimmigrant visa application, "Has an immigrant petition ever been filed on your behalf" is not clear and often perplexing. On its face, it appears that if the derivative beneficiary (spouse or child) was listed on an immigrant visa petition (e.g., I-140), the answer is "yes." Recently, however, the State Department's Visa Office confirmed that it is acceptable for a spouse or child of a principal foreign national to answer "no" to the question. Further, DOS confirmed that there would not be any negative implications if a derivative beneficiary does not disclose this information on the DS-160 application. Conversely, responding "yes" does correctly indicate that an applicant is a derivative beneficiary on an immigrant petition for a future immigration benefit. A derivative beneficiary named on an immigrant petition may respond "yes" or "no" to this question and either response does not result in misrepresentation. It should be noted that this clarification is from DOS and not from USCIS, which includes a similar question on its Form I-539.
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USCIS Clarifies Policy on Travel Permits
Update on Practice of Denying Pending Advance Parole for Abandonment Due to Travel Abroad
Most foreign nationals who apply for advance parole (travel permit) (Form I-131) in conjunction with an adjustment of status application must wait for the travel document to be issued before traveling abroad; otherwise, their adjustment case will be considered abandoned and the travel permit denied. But what happens when that individual has a valid travel permit but must renew it? In the latter half of 2017, USCIS began denying the second I-131 application even if the applicant had a separate valid advance parole document valid for the entire time the foreign national is abroad. This caused tremendous hardship for individuals who needed to travel internationally, because they had to wait again three to six months for their second travel permit to be issued. Recently, through several stakeholder meetings, USCIS has confirmed that individuals may travel on an approved advance parole document, provided the document is valid for the entire duration of their time abroad, without risking that the second, pending Form I-131 would be considered abandoned and thus denied. While USCIS updated its website to reflect the same in December, there has been no pronouncement by USCIS until now. Phew!
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Immigration Court Backlog
Grows by 26 Percent
According to a recent article in the Los Angeles Times, the administration's plan to shrink the ballooning backlog of immigration cases by mandating that immigration judges hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years. Since October 2017, the pending caseload has grown by more than 26 percent — from 656,000 cases to about 830,000.
When the Justice Department's Executive Office of Immigration Review (EOIR), which administers the immigration courts, released its plan, officials described it as a comprehensive strategy for significantly reducing the caseload by 2020. And, while the EOIR did not expect its pending caseload to reverse itself overnight, significant reductions were expected. Instead, the average wait has grown by about 30 days — and is now 746 days — extending the stay of thousands of foreign nationals whom the administration might want to deport from the United States.
The current Administration has blamed the ballooning backlog on President Obama's immigration policies, and took several controversial steps to reverse the backlog, which turns out not to be effective. For example, one move restricted the ability of immigration judges to schedule and set priorities for their cases, under a process known as "administrative closure." That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. The administration also tied immigration judges' individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year. Any speed-up that may have resulted from the imposition of quotas on the judges has been overtaken by the administration's stepped-up enforcement efforts, which have pushed thousands of new cases into the system. Indeed, stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically.
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U.S. Embassy in Caracas
Suspends All Visa Services
On January 25, 2019, the Department of State announced that the U.S. Embassy in Caracas, Venezuela, suspended routine visa services due to the ordered departure of nonemergency personnel. The consular section advised that it is focused on providing emergency services for U.S. citizens. The State Department has not yet designated an alternative post for immigrant visa processing for citizens of Venezuela, but expects to do so soon. In the meantime, the U.S. Embassy in Lima, Peru, has advised that that it is amenable to receiving both NIV and IV applicants from Venezuela. While DOS does not designate alternative posts for NIV applications, as NIV applications can be filed at any consular post, consulates have discretionary authority (albeit rarely exercised) to refuse NIV applications from applicants who do not regularly reside in the consular district. Visa applicants who are physically present, but not resident, in a consular district where they would like to present a NIV application should consult the consular post's website to ascertain its policy on receiving such applications.
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USCIS Updates Guidance on
Involving Minor Spouses
USCIS has updated its guidance identifying factors officers should consider when adjudicating a Form I-130 spousal petition involving a minor. Those factors include: (1) whether the marriage was lawful in the place it was celebrated; (2) if the couple resides outside the place of celebration, whether the marriage is recognized as valid in the U.S. state where the couple currently resides or will presumably reside and does not violate the state of residence's public policy; (3) whether the marriage is bona fide; and (4) whether the minor provided full, free, and informed consent to enter into the marriage. Prior to this update, USCIS created a flagging system that sent an alert in the electronic system at the time of filing if a minor spouse or fiancé is detected. The guidance is expected to complement the flagging system currently in place. While there are no statutory age requirements to petition for a spouse or be sponsored as a spousal beneficiary, the updated guidance stresses to adjudicators that marriages involving a minor warrant special attention.
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NEWS IN BRIEF
The following additional items may be of interest to our readers:
Cap-Subject H-1Bs Filed April 2018 Remain Pending; Premium Processing Now Available for H-1B Petitions Filed on or Before 12/21/2018: Inexplicably, numerous FY 2019 H-1B cap-subject petitions (filed in April 2018 for visas that became available on October 1, 2018) remain pending with the California Service Center. USCIS has indicated that it is unable to provide a timeframe for the processing of these cases but that it is working diligently to process them as soon as possible. Presumably, in response to this processing delay, USCIS recently announced that it would permit premium processing for all H-1B petitions filed on or before December 21, 2018.
Lawsuits Challenge Trump's National Emergency Declaration: The American Civil Liberties Union, environmental groups, Texas landowners, and 16 states have filed lawsuits challenging President Donald Trump's declaration of a national emergency on the U.S.-Mexico border as an unconstitutional overreach of executive authority. More have vowed to join their ranks.
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