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What's the Hold Up? USCIS and Immigration Delays

What's the Hold Up? USCIS and Immigration Delays

The Unites States of America is often described as a “melting pot”, with people from all over the world immigrate here in search of a better life for themselves and/or their families. Some come seeking educational or economic opportunity, while others come for asylum and safety. The U.S. Citizenship and Immigration Services (USCIS) is the federal agency that oversees the lawful immigration of people who are temporarily or permanently settling in the United States and is responsible for granting or denying immigration benefits to those individuals. Over a million immigrants and asylum-seekers enter the U.S. each year, with over 35 million applying and entering legally, and USCIS has been having a hard time keeping up. Between the large number of people coming to the U.S., along with new policies targeting the immigration system, USCIS has seen a significant backlog of cases that has been impacting the lives of many immigrants and their families.

USCIS was established on March 1, 2003 and is under purview of the Department of Homeland Security (DHS). After the devastating events of September 11, 2001, Congress passed the Homeland Security Act of 2002, which fragmented the previous federal immigration agency into three new separate agencies under the DHS in order to enhance national security and improve efficiency in the handling and processing of cases they receive. These three agencies are the following: USCIS, which is responsible for immigration service functions; Immigration and Customs Enforcement (ICE), which is principally responsible for immigration enforcement; and Customs and Border Protection (CBP), which handles immigration enforcement and border security.

While security measures were definitely heightened after the three agencies were established, the efficiency aspect of the plan fell short. Long USCIS processing delays are now the norm for immigration cases across the board as the delays have reached crisis levels. Processing times increased by 46 percent over the past two fiscal years and an overall 91 percent since 2014. In fact, even though application submissions declined by 17 percent in 2018, processing times continued to rise. In some cases, H-1B petitions (temporary employment visas) can take up to a year for a decision. I-140 immigrant visa petitions that used to take about three months to process now take about eight months. Naturalization cases (N-400 and N-600 petitions) used to process in five months - now it is 10 months.The most recent backlogs and longer wait times can ultimately be attributed to the Trump Administration and its various immigration policies. While President Trump and his administration claim that they want to end “illegal” immigration, in actuality, they have made things far more difficult for immigrants seeking to enter the country by legal means. A recent analysis of USCIS data by the American Immigration Lawyers Association (AILA) refers to these “crisis-level delays” as “bricks in the Trump administration’s ‘invisible wall’ curbing legal immigration in the United States.”

This state of affairs is exactly the opposite of what USCIS was intended to do. When USCIS was first created, its explicit priorities were to eliminate application backlogs and prevent future backlogs from forming. USCIS was meant to provide immigration benefits to customers; it was not intended to function like a law enforcement agency. Under President Trump however, things have not gone according to plan as the implementation of new security protocols has needlessly extended the processing of virtually every immigrant application. Recent changes in immigration policies are also contributing to these processing delays. In April 2017, President Trump signed his “Buy American and Hire American” executive order which impedes U.S. employers’ ability to recruit foreign labor. In particular, it restricts temporary H-1B visa holders in the name of “protecting American workers.” Under this order, USCIS will increase H-1B inspections and commence site visits of businesses that employ foreign workers holding “specialized knowledge” under the visa. USCIS says their goal under the broadened Administrative Site Visit and Verification Program is to prosecute employers who purposely misuse a subset of the 800,000-plus visa workers in today’s economy. Some say USCIS is now relying on anti-fraud investigations rather than rights. 

USCIS has implemented changes that also contribute to longer processing times. For example, they no longer give consideration to prior determinations made on applications. As a result, even extensions of stay require complete re-adjudications. This policy, adopted by memorandum in October 2017, rescinds prior guidance dating back to 2004 and 2015, which instructed officers that when adjudicating an application for renewal or extension of certain temporary visas for employment, they should near-automatically approve the application if the circumstances were substantially the same. USCIS claimed this way of doing so was “problematic” because of fear that the original application was fraudulent and it “shifted the burden of proof from the applicant to the officer.”

Another issue lies in the interview process. The 2017 institution of interviews for all employment-based green card cases has created substantial backlogs. Prior to the summer of 2017, the only benefits applicants who were interviewed as a matter of policy (as opposed to one-off situations with unique concerns) were marriage-based family green card cases. These cases represented about one-third of all green card admissions that USCIS handled in 2017. This means that the other two-thirds of USCIS cases had no recent contact with a USCIS officer before receiving their green card. Following the January 2017 presidential directive to improve the screening of applications, USCIS began interviewing all applicants seeking to adjust status to an employment green card (about 165,000 cases) and applicants who claim to be family members of asylees and refugees (both historically high-fraud categories). This has led to a significant increase in processing times for one-third of the USCIS caseload.

New USCIS policies have also led to a dramatic rise in requests for evidence, meaning that USCIS officers must adjudicate cases twice. However, the Administration’s focus on enforcement has diverted resources from adjudication. Suspensions of premium processing have made it impossible to speed up adjudications even in the most desperate cases.

Not only are these processing delays bad for the government, but they have serious consequences for the employment sector. U.S. businesses are hurt when they cannot obtain work visas for necessary or key employees in a timely way. Foreign-national employees become disenchanted due to their inability to obtain a legal status and may leave the U.S. for better opportunities. Families suffer financially when dependents cannot obtain work authorization. Vulnerable populations also suffer greatly when they cannot obtain protection under U.S. immigration laws. 

On May 13, 2019, 38 members of Congress from both sides of the aisle sent a letter to Kenneth Cuccinelli, the Director of USCIS, questioning the delays. They pointed out that USCIS was created “to be a service-oriented, immigration service agency with the mission to adjudicate immigration matters to enable individuals to obtain work authorization, citizenship, humanitarian protection and other important services.” But the new mission statement issued by USCIS in early 2018 no longer emphasizes customer satisfaction. Rather, it focuses solely on enforcement.

To fix this problem, changes have to be made at the policy level. However, given the fact that there is currently a divided government and immigration is a hotly contested topic between the Trump Administration and both chambers of Congress, the reality is that the U.S. will not be seeing real policy change anytime soon. What Congress can do in the meantime is continue to hold agencies like USCIS and DHS accountable through hearings or meetings with members of each respective agency. Members of Congress are also in a unique position because their individual offices in their districts have the power to handle immigration cases. 

The probability that any of these policies will be reversed in the near future is slim and, even if they are reversed, it would take time to implement the new policies and even more time for agencies to adjust to them. Yet, it is not impossible and there is a way to work around the current policies to try to make things run more efficiently. Congress could also look into providing more funding to USCIS. If they are given more funding, they can hire more staff, more caseworkers, and get access to more resources. Congress could appropriate funds that are earmarked for infrastructure and technology improvements that will speed up processing rates.

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