Trio of Initiatives Moves USCIS in the Right Direction

Seyfarth Synopsis: On March 29, 2022, USCIS announced three new initiatives to reduce processing delays and backlogs: (1) establishing processing time goals for petitions and applications; (2) expanding premium processing options for certain I-140 petitions and for certain  I-539 and I-765 applications; and, (3) developing a temporary final rule to automatically extend certain employment authorization documents.

Background

In an effort to reduce extreme immigration processing delays and ever growing backlogs, and to provide relief to work permit holders, the United States Citizenship and Immigration Services (USCIS) formally announced three new initiatives.

In an introduction to the announcement, USCIS explains that “[d]ue to the COVID-19 pandemic and resource restraints…” there has been a significant increase in pending cases as well as overall lengthier processing times. With over 9 million pending cases, USCIS is considering more creative and novel solutions to ease the strain on their operations.  “USCIS remains committed to delivering timely and fair decisions to all we serve,” said USCIS Director Ur M. Jaddou. “Every application we adjudicate represents the hopes and dreams of immigrants and their families, as well as their critical immediate needs such as financial stability and humanitarian protection.” This trio of efforts is aimed at increasing  “efficiency and reduce burdens to the overall legal immigration system” an overall theme of the Biden administration.

Phased Expansion of Premium Processing

By codifying certain premium processing fees and adjudication timeframes that have been provided by Congress[1], DHS has published a final rule to expand premium processing[2] eligibility for select I-140 petitions and certain I-539 and I-765 applications.  

Specifically, USCIS will expand premium processing options for the below:

• I-140 petitions filed for multinational managers/executives (EB-1C) and national interest waiver (NIW) beneficiaries (EB-2). Fee of $2,500 and processing time of 45 days.
• I-539 applications requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status. Fee of $1,750 and processing time of 30 days.
• Certain I-765 applications requesting employment authorization. Fee of $1,500 and a processing time of 30 days.

Before October 1, 2022, the start of the new government fiscal year, premium processing should be available for EB-1C and NIW I-140 petitions; for I-539 applications requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status; and for I-765 applications for students applying for Optional Practical Training (OPT) and exchange visitors. The earliest possible date for premium processing in these categories is May 31, 2022. It may take longer, however, before premium processing is available for these petitions and applications.

According to the Final Rule, premium processing for I-539 applications for E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrants and many I-765 categories might not be available until Fiscal Year 2025.  

This  effort is extremely important to businesses and individuals alike, but due to the phase in and the associated logistics, it remains to be seen how well an already stressed USCIS will handle the implementation.  Also critical to the success of this effort is a reasonable timeline in which USCIS implements premium processing for employment authorization documents EADs, and the inclusion of a significant number of categories.

We will post updates as soon as more information is released.

Upcoming Employment Authorization Document Relief

In addition, USCIS  announced the pending publication of a temporary final rule named “Temporary Increase of the Automatic Extension Period of Employment Authorization Documentation for Certain Renewal Applicants.”

In 2017, USCIS began to allow automatic extensions[3]of certain EADs for up to 180 days when the application for renewal is properly filed, prior to the document’s expiration date, and in the same EAD category as the expired EAD card[4]. With the announcement of this temporary final rule (TFR), the USCIS appears to confirm its intention to expand the current 180 day auto-extension period further out, possibly to 240 or even 540 days.  This should reduce the number of employees who are terminated or suspended from employment due to work authorization gaps. This extension will also reduce the number of expedite filings currently being filed with the USCIS and would free up much needed resources.  The specifics of this rule are not yet available.

Reducing Processing Backlogs

As a data benchmark, USCIS announced an establishment of new internal cycle time goals, which includes a helpful chart. USCIS anticipates that as these cycle times are met, improved processing times will follow. The stated goal is to take necessary steps to “increase capacity, improve technology, and expand staffing”  to arrive at these goals by end of FY 2023. Specifically, the USCIS website states: “As part of our backlog reduction efforts, we are establishing new cycle time goals to achieve by the end of fiscal year 2023…..As cycle times improve, processing times will improve as well, and we will issue adjudication decisions more quickly”.  As an example, under these new cycle times, USCIS officers should aim to adjudicate I-129 petitions (non-premium) within 2 months and provide adjudication for I-539, I-765, and I-131 applications within 3 months.

This trio of initiatives is welcomed by stakeholders, individuals, attorneys and employers alike. We applaud Director Ur Jaddou as she leads the agency forward in unwinding many prior missteps and legacy difficulties.

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.

 

[1]  In October of 2020, Congress gave USCIS the authority to expand premium processing in the Emergency Stopgap USCIS Stabilization Act. Notably, the Act requires USCIS to only implement the expanded premium processing when it can avoid increasing other processing times.

[2] Premium processing provides expedited processing for certain immigration petitions in exchange for an additional filing fee.

[3]See, the final rule “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” providing for automatic extensions of the validity periods of certain Employment Authorization Documents (EADs) (Form I-766) for up to 180 days.

[4] See, Handbook for Employers M-274 at Section 4.4 Automatic Extensions of Employment Authorization Documents (EADs) in Certain Circumstances  and note exceptions including employees with TPS who may have a C19/A12 combination and for H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status must accompany Form I-797C.