USCIS Announces New Actions to Reduce Case Backlogs, Processing Times

​U.S. Citizenship and Immigration Services (USCIS) announced March 29 new actions to help reduce caseload backlogs and improve processing times, problems that were recently exacerbated by the COVID-19 pandemic and tightening resource constraints.

The agency issued a final rule expanding premium processing to additional employment-based immigration applications and petitions. It also announced new internal backlog reduction goals and progress toward improving access to employment authorization documents (EADs), which are crucial to foreign workers and the organizations that employ them.

The Biden administration's efforts to speed up processing are positive but may not be sufficient to meet the challenges of the backlogs and the humanitarian crises in Afghanistan and Ukraine, which are siphoning away resources, said Lynden Melmed, a partner in the Washington, D.C., office of global immigration law firm Berry Appleman & Leiden.

Melmed spoke on a panel with firm colleagues Tiffany Derentz, senior counsel, and Eileen Lohmann, senior associate, at the SHRM Employment Law & Compliance Conference 2022 on March 28 in Washington, D.C.

In previewing the Biden administration's business immigration priorities for the year, the trio spoke about the significant number of pending cases and increased processing times inherited from the previous administration, as well as problems that President Joe Biden could not have foreseen.

"An incoming administration may have its own priorities, but world events end up dictating what you actually work on," Melmed said. "The Biden administration had a number of other policy issues they wanted to pursue, including reducing backlogs and rescinding Trump administration policies, but they have had to react to crises in Afghanistan and Ukraine. When the government is reacting to a humanitarian crisis, including on the U.S. border, that means the immigration agencies are having to pull resources, and that has implications for employment-based immigration."

Funding has been a primary concern.

"When Biden came into office, he inherited immigration agencies with significant staffing shortages due to hiring freezes," Derentz said. "Visa processing was shut down completely in the early months of the pandemic, and the funding loss to immigration agencies in fees during that time was billions of dollars. That's money that goes toward their budget and their operations."

The shortfall in funding is another factor in exacerbating the backlogs and processing delays that will take years to recover from, she said.

Expanded Premium Processing

USCIS announced a final rule expanding premium processing, which is an expedited service now available only to petitioners filing for temporary workers and to certain employment-based green card petitioners.

"Premium processing service ensures that USCIS will adjudicate a filing within 15 calendar days from its receipt," said Brian Coughlin, a partner in the Boston office of Fisher Phillips. "The government fee is presently $2,500. This is a very useful, albeit expensive option, as normal case processing times are extremely lengthy—more than a year—for some case types."

The final rule expands the categories of forms ultimately eligible for premium processing services to include additional categories of I-140 green card petitions, certain Form I-765 EAD applications, and some Form I-539 applications to change or extend status.

"Expanding premium processing service to EAD applications will provide much-needed relief to thousands of people who are presently unable to lawfully work in the U.S.," Coughlin said. "It will also provide relief to employers, who are suffering from a lack of candidates during the present labor shortage."

"This is something the business community has been pushing for a long time," Lohmann said. "It gives the certainty of a quick turnaround for workers and employers and provides much-needed revenue for the agency."

She added that employers should be aware that the new premium processing categories will be phased in gradually to adhere to the congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefits requests.

Caseload Reduction Efforts

To reduce the agency's pending caseload, USCIS is establishing new internal metrics that will guide the agency's backlog reduction actions. As cycle times improve, processing times will follow, USCIS said, and applicants and petitioners will receive decisions on their cases more quickly. The agency plans to increase capacity, improve technology and expand staffing to achieve these new goals by the end of fiscal 2023.

"The new cycle times are posted online, and will hopefully reflect the agency’s progress in the coming months," Coughlin said.  

USCIS also said that it has begun streamlining EAD processes, such as by extending validity periods for certain EADs and providing expedited work authorization renewals for health care and child care workers.

Lohmann noted that eligible spouses of professional and executive visa holders will receive automatic extensions of their work authorization documents as a result of a recent USCIS policy change.

USCIS amended its spousal employment authorization policies for H-4 and L-2 visa holders, allowing them to avoid employment gaps because of paperwork processing delays.

"Processing times for EADs are unprecedented right now," Lohmann said. "People are having to stop working because they don't have a document to show to their employers."

Higher Filing Fees

Lohmann said that one of the most pressing priorities for the immigration-related agencies is to raise money. The Department of State has already proposed higher visa fees, and USCIS expects to propose fee increases across the board this year.

"That's important to be aware of as employers plan immigration budgets in 2022," she said.

The higher fees are meant to recover operating costs. USCIS projects that the cost of providing immigration services will exceed the funds available to it under its existing fee structure, a common complaint from the agency.

"It's difficult to accept higher fees, but it is understandable because the agencies have not increased fees in six years and have a lot of new mandates to cover," Melmed said.

In addition to these efforts, processing should be expedited as interview waivers are expanded, both at consulates abroad and within the country, after the Trump administration had made them difficult to attain.

"There's always been some form of interview waivers out there, which allows people to skip the interview with a consular officer," Derentz said.

Lohmann added that USCIS has also started waiving interviews within the country for employment-based green cards, which were required by the Trump administration and added extra time to the process. She explained that the Biden administration is trying to remove as many extra steps as it can in the adjudication process in order to issue as many as the record number of employment-based green cards available this year (estimated to be around 280,000).

"There are concerns that they might not use all of those numbers, like last year, because of strained agency resources," she said.

Melmed said the diversion of resources to other areas, like the crisis in Ukraine, will result in longer backlogs for employment-based green cards.

"There's palpable anger and frustration among workers who were already facing a multiyear wait for a green card and are told that it will take a few more years. The human impact for them, and their spouses and family members, those are raw issues," he said.

2022 Immigration Agenda

The Biden administration's regulatory plans for 2022 reveal that it will continue Trump-era proposals to reform the H-1B visa program for professional workers, including raising the wages of those workers.

"It is interesting because this is a place where both political parties agree—calling for increasing H-1B wages," Melmed said. "We do expect more activity on this front."

The Department of Labor (DOL) plans to advance a new prevailing wage regulation this year, based on the public feedback it received in a request for comments conducted in 2021.

A final rule proposed by the Trump administration that would have raised wages for workers with H-1B visas and employment-based green cards was slated to take effect on Nov. 14, 2022; however, it was vacated by a federal judge in June 2021. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration.

Another Trump-era proposal reallocating H-1B cap numbers to the highest-paid beneficiaries according to the DOL's wage levels has been withdrawn by the Biden administration, though it is not clear whether the concept is still on the drafting table. Biden expressed support for salary-based H-1B visa allocation during the 2020 campaign.

"We may see changes to the H-1B lottery registration process," which first debuted in 2020, Lohmann said. "It hasn't worked exactly as the government thought it would, so I think they will try to figure out a way to tighten it up."

USCIS intends to offer a rule amending aspects of the H-1B visa program first proposed by the Trump administration, although some modifications from the Trump-era rules are expected in the new proposal scheduled for May. According to USCIS, the rule will:

• Redefine the H-1B employer-employee relationship.
• Establish new guidelines for employer site visits.
• Clarify rules for F-1 students awaiting a change of status to H-1B.
• Clarify the requirement that an amended or new H-1B visa petition be filed if there are material changes to employment, including a new worksite location.

"Again, this is expected to be distinct from the Trump administration's version, which would have significantly narrowed this category and changed the definition of specialty occupation," Lohmann said. "We don't expect the Biden administration's changes to be as much of an overhaul."