USCIS Must Address Ballooning Backlogs, Ombudsman Says

​Severe and growing backlogs, inadequate funding and an increasing number of lawsuits continue to plague the agency that oversees the processing of employment visas for foreign workers.

The public's liaison to U.S. Citizenship and Immigration Services (USCIS) said that reducing application backlogs and delays must be the agency's top focus. According to the Office of the Citizenship and Immigration Services (CIS) Ombudsman, an independent office within the Department of Homeland Security, there were 8.5 million pending applications at USCIS as of April, and over 5 million of those were pending beyond their deadlines. By comparison, the backlog was around 2.7 million in July 2019.

"USCIS has always had its share of backlog issues, but none so severe in recent memory as the ones it currently confronts," said CIS Ombudsman Phyllis Coven. "These lengthy processing times and the high number of unadjudicated cases—created out of the pandemic's unprecedented effect on [the agency's] ability to operate, insufficient revenue and employee attrition—have had a massive snowball effect on the agency's operations."

USCIS is setting aggressive processing goals going forward, she said, as well as trying to mitigate the pain points for applicants and petitioners in the meantime so that they may work without fear of losing their immigration status.

Yearslong Delays Exacerbate Waits

USCIS acknowledges that the increase in processing times and the growth of backlogs is a complex problem years in the making, but the shutdown of in-person operations in March 2020 due to the COVID-19 pandemic kicked off a destructive spiral.

"The pandemic led to a 40 percent reduction in immigration filings submitted between March and May 2020, which significantly reduced the agency's cash flow," said Ashley Kerr, an attorney in the Columbia, S.C., office of Ogletree Deakins. "This precipitous drop in revenues caused USCIS to twice notify over two-thirds of its staff of a potential furlough due to its anticipated inability to meet payroll expenses."

The furlough was narrowly avoided in August 2020, but it's been reported that many employees left the agency anyway, worried about job security.

Kerr added that while the pandemic obviously exacerbated processing delays at USCIS, "some believe that the pandemic revealed potential inefficiencies within the agency. While some factors may have been outside of USCIS' control, the processing delays for millions of immigration cases may also partly be due to the agency's policies."

Data published by Syracuse University found that over 6,000 lawsuits will have been filed against the federal government by the end of fiscal 2022 to compel action from USCIS on individual cases. This is a 50 percent increase in lawsuits compared with the previous fiscal year.

"Lawsuits asking courts to order government employees to decide long-pending immigration filings have increased sharply in the past year," said Leslie Dellon, a senior attorney at the American Immigration Council in Washington, D.C. She added that people facing delays may view lawsuits as their only means of receiving a decision when they hear nothing back from agencies for months or even years.

"While USCIS is doing much to reduce its backlogs, it is unlikely to change as quickly as the

agency intends," Coven said. "Focusing only on reducing the backlogs themselves fails to timely address the systemic problems that backlogs have created. The agency must continue to address both."

Process and Staffing Changes

Experts agree that USCIS needs both operational changes such as improvements to the employment authorization document (EAD) renewal process and increased funding and staffing in order to improve the agency's functioning.

Kerr said that because "chronic underfunding and understaffing" issues at the agency lead to missed targeted processing times, the ombudsman has recommended that USCIS re-engineer its fee review process to reduce the cycle times for future filings and also hire sufficient staff to eliminate its backlog of cases.

"Fortunately, USCIS has requested additional congressional appropriations for the next fiscal year and is hiring additional employees to address these backlogs, which are critical steps to reducing the overall processing times for both pending and future immigration applications," she said.

Kerr explained that 97 percent of the agency's operating budget is derived from the filing fees that are collected with immigration applications. When USCIS forecasts the costs of providing services to process applications, its financial modeling relies on past data, and the process of proposing filing fee adjustments takes time and involves many steps, including a fee review study and a public comment period. The latest fee change proposal took about 2.5 years from start to finish.

Coven said that the agency is working on an ambitious hiring goal of 4,400 positions by the end of 2022. She also recommended changes to the agency's fee-for-service funding model, including re-engineering the agency's biennial fee review process "to ensure they fully and proactively project the amounts needed to meet targeted processing time goals for future processing as well as backlog adjudications. Having the right number of staff and ensuring that they receive the robust training they need must be one of the agency's highest priorities."

A proposed rule seeking to increase fees and recover USCIS' recent operating costs is expected from the agency in September.

Processing EADs

Many foreign workers require EADs to work in the U.S. USCIS is currently experiencing an unprecedented backlog for EADs, including initial and renewal applications.

"Delays in renewing EADs interrupt employment for noncitizens who have already proven themselves eligible while simultaneously interrupting the ability of U.S. businesses to employ their workforce continuously," Coven said.

USCIS has committed to reducing EAD processing times, and Coven has recommended additional improvements to allow for uninterrupted work authorization for eligible, previously approved workers, including:

• Building on existing automatic extension periods to allow for uninterrupted work authorization while the agency adjudicates a renewal EAD application.
• Providing better options for foreign spouses to renew their employment authorization.
• Allowing applicants to file for renewal EADs earlier.
• Continuing to expedite EAD renewals for workers in certain occupations. USCIS has expedited renewal applications for health care and child care workers, for example, and fast-tracking EADs for supply chain workers may be another area to explore, Coven said.
• Exploring more automation of EAD processing.

"USCIS has taken some steps to lessen the impact of EAD processing delays," Dellon said. "It has lengthened the automatic extension of work authorization for timely filed renewals in certain categories from 180 days after expiration to 540 days."

The agency also extended the validity period for EADs based on a pending adjustment-of-status application from 1 year to 2 years, reducing the need for a renewal as USCIS processes the underlying application.

Digital Future

The lack of a digital filing option and the continued reliance on paper-based processes have been major contributors to the agency's immigration case backlog, experts agree.

Coven reported that USCIS' ongoing efforts to expand online filing and electronic processing—15 years in the making—is nearing a turning point.

Twelve USCIS forms are now available for online filing, and the agency plans to offer "end-to-end online filing and processing for all immigration forms by the end of fiscal year 2026," she said.

In 2021, EAD applications—the most frequently filed immigration benefit—were added to the agency's online offerings.

Coven recommended that USCIS make developing an application programming interface, or an API, an immediate priority so that more immigration attorneys and companies that process benefits forms can easily transfer data to agency systems.

"Many attorneys, accredited representatives and other high-volume immigration benefit filers generally do not file online because the USCIS system is cumbersome and inefficient," she said.