Developing Trend: Increase in USCIS Processing Delays for Certain Immigration Benefits

August 17, 2016

We are bringing to our clients’ attention an increase in the U.S. Citizenship and Immigration Services (“USCIS”)’s processing times for the adjudication of many petitions and applications for employment-based immigration benefits. These delays have increased over the last few months, impacting employment authorization (“EAD”), advance parole (“AP”) and adjustment of status (“AOS”) applications, as well as H-1B extension of stay requests (“H-1B extensions”). USCIS publishes average processing times on its website, however, these figures are often outdated or otherwise inaccurate and therefore largely uninformative. USCIS has acknowledged the processing delays but has not identified the cause for delays.

 

Impact on Employers and Employees & What Can Be Done

EAD delays – On average, most EAD applications filed in recent months are taking over 4 months to be adjudicated, particularly those based on a pending AOS application. Under current immigration law, USCIS is required, with certain exceptions, to adjudicate EAD applications within 90 days, or else issue interim employment authorization. In practice, however, USCIS stopped issuing interim work authorization years ago. Due to the current backlog, foreign nationals who rely exclusively on an EAD for U.S. work authorization may face a delay in start date. Meanwhile, foreign nationals awaiting a renewal of their EAD may be required to stop working until the new document is issued. Such restrictions apply to foreign nationals in E-3D, J-2, H-4, and L-2 status; foreign nationals in F-1 status applying for first-time Optional Practical Training (“OPT”); and foreign nationals seeking an EAD pursuant to a pending AOS (green card) application.

 

AP delays – As with EADs, many AP applications filed in recent months are taking over 4 months to be adjudicated. The majority of these applications are filed concurrently with an EAD application, and the two applications are adjudicated jointly. Foreign nationals who are required to obtain AP in order to reenter the U.S. from abroad may be required to forego international travel until the document has been issued.

  • Expedite Requests – A request may be made with USCIS via phone, or in writing, to expedite a pending application for EAD or AP. Such requests are reviewed on a case-by-case basis and granted at the discretion of the office leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the requisite criteria have been met, including such considerations as severe financial loss, emergency situation, and humanitarian reasons.

H-1B Extension delays – On average, H-1B extensions filed via regular processing are taking over 6 months to be adjudicated. Under current policy, H-1B workers whose extensions are timely filed may continue working for their employer for up to 240 days beyond their period of authorized stay. However, H-1B nonimmigrants cannot renew an expiring drivers’ license, nor can they seek reentry to the U.S. following international travel, based on a pending extension. In March 2016, USCIS began transferring H-1B petitions from the Vermont Service Center to the Nebraska Service Center, followed by transfer of cases from the California Service Center as well. This transfer is expected to reduce the backlog in processing times.

  • Interfile Premium Processing – A request may be made with USCIS to expedite processing of a pending H-1B petition by filing Form I-907, Request for Premium Processing, with a government filing fee of $1,225. The petition will then be adjudicated within 15 calendar days from the date on which the request is received by USCIS. The additional fee may be paid by the employer or the H-1B worker.

AOS delays – On average, AOS applications are taking 6 to 7 months to be adjudicated. In some cases, applications are delayed further due to lengthy background check delays. Delays to the adjudication of AOS applications may result in employers having to file additional EAD renewal applications, and/or extensions of nonimmigrant visa petitions, while awaiting adjudication results.

  • Submit a Service Request – If a foreign national’s AOS application has been pending for longer than the processing time posted on USCIS’ website, a service request may be submitted online.

Please contact our office with any questions or for assistance with a pending application or petition that is outside of normal processing times.

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