Tag Archives: employment authorization

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USCIS Ombudsman Report for 2016

Government agencies have an Ombudsman who issues reports to Congress and liaises between consumers and the agency to resolve problems. The USCIS Ombudsman released its report for 2016 at the end of June. Important issues for attorneys, individuals, and employers have been visa RFEs and visa delays, Employment Authorization Document application delays, fee waivers, the EB-5 program, and processing times in general. The Ombudsman’s report is over 100 pages. Here are some highlights:

  • The Ombudsman noted the excessive number of Employment Authorization Document applications that are taking over 90 days to adjudicate, despite a regulation that states it must take place within 90 days. One seventh of the Ombudsman’s caseload related to delayed EAD applications. The Ombudsman writes:

“Thousands of EAD applicants and their employers continue to be negatively impacted by the agency’s failure to timely adjudicate Form I-765. The proposed regulatory changes will not improve processing times absent allocation of significant resources to meet processing times goals. The Ombudsman continues to highlight EAD issues as a systemic issue, and will monitor and engage the agency as long as this matter remains unresolved.”

  • USCIS has a proposal to eliminate the 90 day adjudication requirement and replace that with an automatic 180 day extension of the employment card’s validity upon a timely filing. That proposal has not been implemented. The Ombudsman repeated that it has made multiple efforts and recommendations to rectify EAD issues over the past 8 years.
  • H-1B, L-1A, and L-1B RFE rates have decreased from the previous year. This has been monitored for years because of high RFE rates. There are also discrepancies in RFE rates between the Vermont and California Service Centers. Those discrepancies persist.
  • O-1 and P-1 visa petitions are receiving high rates of RFEs (49% and 65%).
  • There is mixed data as to whether the Service Centers issue RFEs toward the end of the premium processing 15 day period as a delaying tactic.
  • Processing times for Naturalization applications are highly variable by USCIS Field Office. Times range from 4 months to 9 months.
  • Processing times for Permanent Residence applications are highly variable by USCIS Field Office. Times range from less than 4 months to over 10 months.

EAD Processing Times

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Keep on Waiting:

Employment Authorization Document Processing Times

An Employment Authorization Document application is supposed to, by regulation, be adjudicated within 90 days. For first time asylum applicants, the regulation states it needs to be adjudicated within 30 days.

Processing times for applications to USCIS usually fluctuate between slow, medium, and quick. The trend for Employment Authorization Cards is that they have been taking the full 90 days. Recently, some applications have exceeded 90 days. This is in spite of the effort that USCIS has made to distribute the work through transfers to different service centers. You may receive a transfer notice from USCIS, which merely means that your case is being adjudicated at a different service center. The end result is that individuals who need to and are eligible to obtain work authorization are left waiting longer and longer. It makes renewing employment authorization difficult to do in a timely manner. An application cannot be submitted more than 120 days in advance. If the Service is exceeding 90 days to adjudicate, that means that applications need to be submitted upon eligibility. Another delaying factor is that it takes a few days for the cards to be produced and mailed.

USCIS Addressing Processing Times

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USCIS Addresses Problematic Processing Times

Our office has noticed that it is taking USCIS longer to issue receipt notices and biometrics notices. USCIS is languishing behind on some processing times. For O, P, and H-1B visa cases, its processing times are well-behind their stated goals. They are months behind those goals. Especially in the H-1B extension context, it is causing problems for employers and beneficiaries. Employment Authorization cases are also taking the limit and sometimes even longer to adjudicate. These delays result in real life consequences for applicants who have done their part in submitting their applications in a timely fashion. Realizing that the consequences of delays can be severe, USCIS has resolved to investigate the matters, review the caseload, and shift cases as need be between service centers.

If you have a pending case with USCIS, do not be surprised to receive a transfer notice. That is not a meaningful action that has been taken on your case. It is just notification that instead of your case, for example, being looked at by an adjudicator in Vermont, the adjudicator is in Nebraska. USCIS transfers cases when the workload is not evenly distributed or resources are not evenly distributed.

USCIS exhorts you to understand that these implementations will not occur immediately and quicker processing times will not be apparent immediately. They expect changes within the next few months.

USCIS Processing Times

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USCIS Processing Times

Processing times have been released for USCIS applications. They are updated as of February 29, 2016. These are available for the service centers. Applications that are processed through the local field offices are not available in these updates. H-1B extensions are still taking an excruciatingly long time. Vermont is backed up to July 20, 2015. California is backed up to September 18, 2015. They are pretty much demanding that premium processing is needed for a timely decision. U visa applications are badly backed up. Employment authorization applications are also taking a long time. That is why there have been so many transfers to different service centers. Notably, there are still not available processing times for applications that are pending at the Potomac Service Center in Arlington, Virginia. Many Family-Based petitions, DACA, and Employment Authorization applications are being processed at the Potomac Service Center, which is designated as YSC in the receipt notice.

EAD Cases Transferred

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Employment Authorization Cases Being Moved to Texas

If you have a recent employment authorization case, do not be surprised if USCIS sends you a transfer notice. To spread out the work more evenly, the agency is sending many of its employment authorization applications to the Texas Service Center. When USCIS transfers applications between service centers, it issues a transfer notice. All the notice means is that your case is being transferred. A decision has not been made.

The agency is still trying to ensure that it is making decisions within 90 days. If you move your residence, you are obligated to make USCIS aware of the change. This is important. If you move addresses and USCIS does not know, your card may not arrive to the proper address.