USCIS Processing Delays Impede Employers

​The top challenges organizations face when hiring foreign talent are lengthy processing times and unpredictability of the immigration process, according to the Society for Human Resource Management's 2019 State of the Workplace report.

The federal office charged with improving immigration administration concluded that increased filings, technology challenges and insufficient staffing are the primary reasons for the processing delays. In reporting on employment authorization documents (EADs), the most voluminous filing at U.S. Citizenship and Immigration Services (USCIS), the agency's ombudsman's office recommended USCIS hire more staff; move the paper-based EAD application form to the agency's electronic filing and case management system, which is still a work in progress; and start a public education campaign to encourage workers to renew their EADs well before they expire.

But others assert that the Trump administration's policies and practices have slowed down the immigration benefits process and that USCIS should reverse those policies that are increasing backlogs.

EAD Filings Top 2 Million

An EAD is the identity document issued by USCIS to a foreign national that proves he or she has unrestricted permission to work for any employer in the United States. Applicants include those adjusting to permanent residence status, students, those in temporary protected status and certain dependents of visa holders. In 2018, the agency issued just over 2 million EADs, or 27 percent of all benefit request filings with the agency. Applications for EADs have topped 2 million since 2015.

"For the past several years, the EAD has constituted the largest category of filings USCIS receives annually," said Julie Kirchner, Citizenship and Immigration Services ombudsman. "Between fiscal years [FY] 2010 and 2018, the number of EAD applications filed with USCIS grew 63 percent, largely due to increases in specific categories."

Kirchner explained that the addition and expansion of eligibility categories, including the creation of the Deferred Action for Childhood Arrivals (DACA) program in 2012, the extension of temporary protected status (TPS) to newly designated countries, increases among foreign national students seeking optional practical training, and a surge in asylum claims all have contributed to an increase in filings.

Since DACA's inception, more than 910,000 people have requested employment authorization under the program, and there have been about 1.5 million renewal requests. However, EADs related to workers' adjustment of status from holding a temporary visa to a green card consistently remain the most sought-after EAD type.

The growing inventory of filings can have a domino effect on processing times, Kirchner said. In January 2017, USCIS eliminated a regulation that required it to process EAD applications within 90 days, as it often couldn't meet the deadline. Processing times vary for different categories, but for approximately half of all pending EAD applications, they exceed 90 days. Processing times for initial EADs based on an adjustment-of-status application are between 200 and 260 days.

Kirchner said it has been apparent since 2017 that USCIS does not have sufficient staff to handle the volume of filings. She recommended that the agency hire more people to devote more production hours to EAD processing. "Augmenting staffing resources is preferable to simply realigning existing staffing resources—as USCIS has done previously from time to time to addresses surges in workload—as there are already backlogs in processing other form types," she said.

She also urged that the agency accelerate the incorporation of the Form I-765, an EAD application, into its ongoing digital processing initiative, which would reduce the number of steps in the process and improve overall efficiency.

A public education campaign to encourage applicants to file for their EAD renewals up to 180 days before the expiration of their current EAD would help reduce the impact of longer processing times and accumulating backlogs, she added.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Delays Frustrate Employers

Marketa Lindt, a partner in the Chicago law office of Sidley Austin and the president of the American Immigration Lawyers Association, said that nearly every immigration category, not just employment, is delayed. The agency's overall backlog of delayed cases exceeded 5.6 million in FY 2018, a 69 percent increase over FY 2014.

She added that processing delays restrict U.S. businesses' ability to hire and retain workers and weaken the ability of U.S. universities to attract talented foreign students.

"I constantly hear how challenging it is for employers to use the immigration system to meet their staffing needs due to increasing unpredictability and extreme processing delays," she said.

However, Lindt doesn't accept the reasons USCIS gives for its backlog—higher workload and limited resources. "In fiscal 2018, the agency's application receipt rates significantly declined, its budget grew, and yet its case processing times still increased by 19 percent," she said.

She instead places blame for the delays with "the agency's own inefficient policies and procedures. … For example, USCIS reversed many years of prior practice by instituting a new policy requiring its officers to re-adjudicate extensions of previously processed petitions, even where no facts had changed in the filing."

Lindt said the agency's practice of issuing more requests for evidence, "often seeking unnecessary or previously provided information," and the 2017 policy requiring every employment-based green card applicant to appear for an in-person interview exacerbate delays in processing.

Jessica Vaughn, director of policy studies at the Center for Immigration Studies, a Washington, D.C.-based think tank, agreed that processing times at USCIS can take too long and need to be addressed, but policies like the mandatory in-person interview are necessary to restore the integrity of the immigration system. "The problem is that the advocacy groups are saying that to end the backlogs, we should have less scrutiny of applications," she said. "We cannot do that. We cannot rubber-stamp applications because of problems with fraud."

She explained that prior to 2017, employment-based green card applicants had no recent contact with a USCIS officer before receiving a green card. "Yet interviews are a critical part of immigration screening," she said. "Interviews enable immigration officers to evaluate the eligibility and credibility of applicants and their statements."

She said that USCIS should first reform its fee structure and secure enough funding to hire more staff, and improve infrastructure and technology before taking on more workload.