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.

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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.

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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.

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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.

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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.

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The Northwest Immigrants Rights Project and The Advocates for Human Rights, using 3 immigrants as plaintiffs, have filed a class action lawsuit against USCIS. The lawsuit was filed in May 2015 and the organizations filing the lawsuit are seeking immigrants they can include in the lawsuit. The claim in the class action suit is that USCIS is taking longer than 90 days to adjudicate Employment Authorization Cards. Federal regulations dictate that USCIS must decide whether an applicant receives a card within 90 days of receiving the application.  The lawsuit charges USCIS with not adhering to the mandatory 90 days.

Employment Authorization Cards are important for many reasons, chief of which is granting someone the legal authority to work. A person can apply for the card for a variety of reasons. Someone applying for an adjustment of status may want the card while the application is pending. An asylum applicant waiting 2.5 years for the interview can obtain the document and work. A VAWA applicant, qualified H-4 dependent, E-2 dependent, DACA recipient, and host of other categories of foreign nationals in the United States can benefit from the Employment Authorization Card. Not having possession of a valid card can have dire consequences for applicants, who need the card for legal work authorization.

The American Immigration Council has a call out for immigrants who believe they have been affected by late adjudications.

With this in mind, it is crucial to file for your employment authorization card as timely as possible. Most applications require a $380 filing fee, so it is important to file on time, meet the requirements, and plan financially.

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One of the purposes of the US immigration system is to attract the best, brightest, and most talented foreign nationals to ply their professional trade in the United States. It also tries to make the process as smooth as possible for these individuals. The O Visa encapsulates those ideas, providing up to three years of work authorization for extraordinary individuals. The visa is versatile. The NBA (National Basketball Association) tips off this week, the NHL (National Hockey League) dropped the pick this month, the MLB (Major League Baseball) is in full swing with the World Series, and MLS (Major League Soccer) kicks off its playoffs this week. The O Visa can be used for professional athletes. Artists of all kinds of eligible, a definition that can be expanded to include such professions as sommelier and chef. Scientists, doctors, and businesspeople are other common professions that utilize the O Visa.

The visa is meant for the extraordinary individuals in a field, which is adjudicated by USCIS through the fulfillment of criteria. It cannot be petitioned for individually, meaning there must be a sponsoring employer. The employer should have some sort of itinerary or contract to show that the foreign national will be needed for the amount of time requested on the visa (there are renewal options). The visa usually requires a letter from the appropriate labor organization or trade union in the profession, attesting that there is no objection to the foreign national obtaining the visa. The visa’s viability is contingent upon the beneficiary’s continued employment with the petitioner. A benefit to the visa is that it is usually adjudicated in a short amount of time. A drawback is that it does not allow for work authorization for the spouse of the principal O Visa holder, though it does allow for enrolling in classes.

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H4 Work Authorization Complaint Dismissed

The United States District Court for the District of Columba this week ruled against a group seeking a preliminary injunction against the Department of Homeland Security’s Employment Authorization program for certain H-4 dependent spouses. H-4 spouses have H-1B principal visa holders who are employed in a specialty occupation. Until this past Tuesday, all H-4 spouses were barred from employment. A limited class of H-4 visa holders can apply for work authorization: 1) if they have an approved I-140 petition and are waiting for their date to become current or 2) they are in a period of extended H-1B stay as a result of 106(a) and (b) of AC21 (American Competitiveness in the 21st Century Act).

The District Court denied the preliminary injunction because the group failed to show “irreparable harm.” In order to succeed, the group had to show their employment was directly threatened by the availability of these nonimmigrants, who were previously barred from employment. The group is composed of IT workers, so they had to show that their employment in the IT field would be threatened. The court determined that their claim was speculative and purported injuries did not merit relief.

USCIS is adjudicating employment authorization for those certain H-4 dependents who apply.

Faster Employment Authorization Decisions

On the topic of employment authorization, a class action lawsuit has been filed against USCIS (May 22). The Northwest Immigrant Rights Project is seeking declaratory and injunctive relief because there have been delays in adjudicating applications for employment authorization. By law, USCIS is required to render decisions within 30 days for certain employment authorization applications and 90 days for others. The complaint demands that USCIS render their decisions within those timeframes.

Employment authorization is important for nonresidents of various statuses. Some visas are employment-based and some prohibit employment. There is often a “limbo” period for some people in changing their status and employment authorization is crucial for having legal employment.

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United States Citizenship and Immigration Services released tables of processing times for their various service centers last week. If you have an application pending or plan on submitting one soon, you can chart the approximate time it will take to render a decision. If the field office or service center that you are looking at is meeting its goal in processing time, the timeframe is posted in months. For example, the Vermont Service Center is taking three months for Employment Authorization based on a pending I-485 (Permanent Residence) Adjustment. It is not meeting its stated goal for an I-751 Removal of Lawful Permanent Resident Conditions and Employment Authorization based on a pending asylum application, so the date of processing is listed instead.

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We would like to remind nationals of Guinea, Liberia, and Sierra Leone that Wednesday May 20 is the final day to register for Temporary Protected Status. Those three countries received Temporary Protected Status designations in November from Secretary Jeh Johnson of the Department of Homeland Security, following the devastating Ebola outbreak in West Africa. The TPS designation runs from November 21, 2014 through May 21, 2016.

Temporary Protected Status is not an immigration status or even a nonimmigrant visa. It is a temporary designation from the Secretary of the Homeland Security that nationals of a certain country are allowed to remain in the United States through his special authorization. If nationals were present before the designated date, they can apply for TPS. The status permits for employment authorization. The reason for granting a TPS designation is often civil war, natural disaster, or some sort of natural disaster.

In other TPS news, AILA and other advocacy groups are petitioning Secretary Johnson to designate Nepal for Temporary Protected Status. The country has been ravaged by natural disasters recently.

We will keep updating the website with updates on Temporary Protected Status renewals and designations.

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