We’ve been telling clients about processing delays for the past few years, so this news is likely not “news”. In any event, recent analysis conducted by the American Immigration Lawyers Association (“AILA”), using recently published U.S. Citizenship and Immigration Services (“USCIS”) data, provides evidence that the agency is “adjudicating cases at an unacceptably and increasingly slow pace.” The average case processing time has increased by 46 percent over the past two fiscal years and 91 percent over five-year period. Most importantly, in our most recent fiscal year, although case receipt volume noticeably decreased, case processing times had actually increased substantially. In brief, case processing was already slowing before the new administration and the changes they have enacted have significantly impacted the speed of processing in a negative way – AILA has labeled these as “crisis level” delays.
USCIS was created as a “service-oriented immigration benefits agency.” However, policy shifts implemented in accordance with the new administration in 2017, and the push towards “extreme vetting,” including significant RFE issuance have disrupted this mission and transformed the agency to one more concerned with immigration enforcement over fair and efficient benefits adjudication. Notable recent changes included rescinding established guidance of giving deference to prior determinations for nonimmigrant employment-based extensions, requiring in-person interview for employment-based green card applications, overhauling refugee case adjudications, issuing new “Notice to Appear” policy for individuals whose applications or petitions were denied, and subjecting foreign students to deportation proceedings for status violations. The shift was further confirmed in February 2018 when USCIS changed its mission statement removing the phrase “nation of immigrants” and no longer referring to applicants and petitioners as “customers.”
By the end of FY 2017, the agency’s net backlog reached the highest levels on record at 2.3 million delayed cases; which is a 31% increase from the second highest backlog ever. In response to AILA’s analysis, on February 12, 2019, over 85 members of Congress addressed a letter to USCIS’s Director Lee Francis Cissna expressing concern and requesting clarification regarding the agency’s backlog. We encourage our clients and friends of the firm to also notify your local congressional representative with any concerns you have about processing delays. We hope that a concerted effort on the part of Congress to insert some much needed accountability will help reduce the backlog.
On January 28th USCIS resumed Premium Processing for last April’s H-1B Cap filings. And last Friday February 15th USCIS announced it would resume Premium Processing on “new” or “change of employer” H-1B filings on Tuesday February 19th. Unfortunately they resumed this processing on a graduated basis and only those cases filed on or before December 21, 2018 are now eligible for upgrade to Premium Processing. Those filed after that date will have to wait for further updates on availability.
As most of you know, Premium Processing is available for certain types of filings, and it allows, that for an additional fee, USCIS guarantees that the agency will take action on a case within 15 calendar days of receiving the request. With the resumption of premium processing for H-1B petitions filed on or before December 21, 2018, USCIS continues to gradually expand on the types of eligible H-1B cases previously subjected to the Premium Processing suspension. We will continue to monitor the availability of Premium Processing and provide updates as USCIS announces them.
With 10 states having now legalized marijuana for adults, and 33 allowing medical use, marijuana legalization continues to expand in the United States; additionally to the north, Canada has legalized its use, and it’s now a large newly regulated industry. Nonetheless, marijuana usage remains illegal under federal law. It is a federal offense to possess, sell, and use marijuana, recreationally or medically. Though there have been no recent federal criminal prosecutions in states that have legalized usage, marijuana usage or conviction can have significant immigration penalties including being deemed inadmissible or deportable. Each case requires individual analysis. Generally, we advise:
Our last H-1B Cap Webinar is scheduled for Wednesday, March 6th at 11am PST/2pm EST. The webinar, hosted by our Managing Partner David Brown, will provide an overview of the H-1B process, proposed changes, and our approach to ensuring successful outcomes for all H-1B filings. Register HERE, if you have not already done so.
The March 2019 visa bulletin has made more progress in some categories than others compared to February 2019 in terms of dates for filing employment-based visa applications. EB-1 Worldwide has advanced to January 1, 2018. EB-1 China and India has advanced to February 22, 2017, and Philippines advanced to January 1, 2018. EB-2 Worldwide is current. EB-2 China has advanced to January 1, 2016, while India has advanced to April 9, 2009; EB-2 Philippines is current. EB-3 Worldwide is current. EB-3 China has advanced to July 8, 2015, EB-3 India has advanced to May 22, 2009, and EB-3 Philippines has advanced to December 1, 2017.
Breaking a multi-month trend, USCIS has resumed using the “final action dates” chart to allow individuals to file the final stage of the green card process for the month of March. As a reminder, after each Visa Bulletin is published you should check with USCIS.gov to see which chart they are accepting for that specific month.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **