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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It has been a year since the processing times for H-1B cases jumped from an approximate of 2 months to 7 and 8 months. The delays are not just a matter of inconvenience. They have meaningful effects on people’s lives and businesses. A 240 day extension of employment kicks in if an extension of status is filed before the expiration of the previous visa, but there are possible ramifications for renewing Driver’s Licenses and college tuition, among other practical things. The long delays constructively forced businesses and applicants to pay the $1,225 premium processing fee.

Recently many H-1B cases were transferred to the Nebraska Service Center. Our office recently had an H-1B extension case decided in 7 weeks. That seems to signal a return to normal processing times.

Unfortunately, many other kinds of cases are struggling with lengthy delays. Employment Authorization Document applications are not being adjudicated within 90 days, despite regulations that instruct adjudication within 90 days. This is also in spite of case transfers to other service centers. O and P visas are supposed to be adjudicated within two weeks. The Vermont Service Center is hovering at 2.5 months. U visas have finally started to move forward, but the adjudication of those cases has been at a standstill for a year.

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U Visa processing times have stalled for a year. Since June 2015, U visa applications have essentially not been adjudicated. Congress has mandated 10,000 U visas are available per year. That means once 10,000 U visas are granted, the other approvable U visas are waitlisted and backlogged. USCIS has a practice of placing U visa candidates on a wait list, so at least they can obtain an employment card while waiting for U visa approval.

The U visa is partly a humanitarian safe haven for immigration. It allows an applicant to overcome many grounds to inadmissibility, though a waiver can be required. The U visa is a grant of legal nonimmigrant status to someone who has been the victim of a qualifying crime. It requires certification from a government agency, such as the police department that handled the crime. The applicant must have also been willing to or actually have helped in the prosecution of the perpetrator. There is the potential for adjustment to Permanent Residence for U visa applicants and their derivative family members.

USCIS has had some dismal processing times recently affecting all swathes of the immigration spectrum. H-1B and L-1 processing times have been abnormally lengthy. This has caused issues for employees with driver’s licenses, college tuition, and travel. It has caused employers to pay the $1,225 premium processing fee for occasions that should not require it. U visa applications are at a standstill. Employment authorization applications are taking triple the amount of time that they mandated to take for first time asylum applications, and they are pushing against their regulatory period for all other types of applications. Green Card applications through employment-based petitions are beyond processing times. O and P visa petitions are 5xs beyond normal processing of two weeks. If you look at processing times for the service centers, you will see that they are well beyond their stated goals for processing times. USCIS has blamed the slow processing on a lack of resources, as evidenced in its proposed comment for increasing filing fees by 21%.

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If you are an employer that files immigration petitions, especially H-1B and L-1 petitions, you might have noticed that there was an additional fee levied upon certain employers on file H-1B and L-1 petitions. That was in December. DHS is proposing to increase its filing fees for all of its petitions by a weighted average of 21%. These are what the proposed fees are likely to look like:

E, H, L, O, P, Q, R Petitions – $325 becomes $460

Immigration Petition Fee – $580 becomes $700

Premium Processing Fee – $1225 still, but USCIS would like an increase

USCIS has maintained its fees since 2010. The primary reason for increasing the fees, DHS claims, is that current fees are not generating enough revenue to fund their operations.

The timing of the fee increase seems particularly unfortunate. USCIS is well-behind their stated goals in adjudicating many of the aforementioned petitions. Change and extension of status petitions are taking over 6 months for H and L petitions. O and P petitions are usually adjudicated within two weeks. They are currently approaching three months. Because the timing of adjudication is lengthy, it is causing problems for many employers and employees. Premium processing requests are being foisted because of issues with driver’s licenses, among others. A 240 day extension for employment authorization goes into effect once the employee hits her final day of work authorization on her visa. The extension only goes into effect if the extension is timely filed. The lengthy adjudications have been problematic for months.

The Administrative Procedures Act gives 60 days for comments. July 5, 2016 is the final day to comment. The link to comment is here.

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DHS is proposing to increase USCIS filing fees by a weighted average of 21%. USCIS receives congressionally appropriated funds, but they are insufficient to cover the costs of its operations. Most applications that you file with USCIS require a filing fee that must be paid in whole. For example, if you are filing an employment-based petition for an employee, you are subject to a $325 filing fee. An application for citizenship bears a $680 filing fee currently. Premium processing, which is available for select employment-based petitions, is currently $1,225.

DHS is publishing a proposed a rule and is soliciting comments about the proposed adjusted fees. If you are going to be affected by these price increases, you can follow the links to explain why or why not you agree with the proposed changes. As per the rules, DHS is required to consider each comment before it publishes its final rule.

Here are some reasons pulled out of the proposed rule for why DHS needs this increase in filing fees:

USCIS completed a biennial fee review for FY 2016/2017 in 2015. The results indicate that current fee levels are insufficient to recover the full cost of activities funded by the IEFA. USCIS calculates its fees to recover the full cost of USCIS operations, which do not include the limited appropriated funds provided by Congress. USCIS anticipates if it continues to operate at current fee levels, it will experience an average annual shortfall of $560 million between IEFA revenues and costs. This projected shortfall poses a risk of degrading USCIS operations funded by IEFA revenue. The proposed rule would eliminate this risk by ensuring full cost recovery. DHS proposes to adjust fees by a weighted average increase of 21 percent. The weighted average increase is the percentage difference between the current and proposed fees by immigration benefit type.

In addition to ensuring that fees for each specific benefit type are adequate to cover the USCIS costs associated with administering the benefit, the weighted average increase of 21 percent also accounts for USCIS costs for services that are not directly fee funded. For instance, DHS proposes certain changes to how USCIS funds the costs for fee-exempt benefit types through IEFA fee collections received from other fee-paying individuals seeking immigration benefits.6 DHS also proposes to fund the costs of the Systematic Alien Verification for Entitlements (SAVE) program (to the extent not recovered from users),7 and the Office of Citizenship8 through the use of fees. The proposed fee schedule also accounts for increased costs to administer refugee processing. Revenues under the proposed rule would accommodate an anticipated increase in the refugee admissions ceiling to 100,000 for FY 2017. This is an increase of 30,000, or 43 percent, over the FY 2015 refugee admissions ceiling.

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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.

The post USCIS Addressing Processing Times appeared first on Wood Immigration Law.

USCIS often issues transfer notices to applicants who have a case pending with the Service. The reason for this is to speed up processing. For example, an applicant for work authorization may receive a transfer notice 45 days after her application is pending. In the case of work authorization, the Service is obligated to regulation to adjudicate the application within 90 days, so the transfer notice is to ensure that the regulation is followed. The Service has multiple service centers. While some have specialized functions (Texas and Nebraska adjudicate employment-based immigration petitions; Vermont handles U visas and VAWA cases; Vermont and California handle H-1B visas), many of their duties are shared. Petitions for Alien Relatives and Employment Authorization applications are often transferred.

This USCIS link explains all there is to the transfer and what that means. It also posts some of the common transfers occurring.

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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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Periodically, Service Center Operations Directorate has a teleconference or meeting with AILA to inquire upon important issues relating to USCIS petitions and applications. Here are some highlights from the teleconference with SCOPS earlier this month.

H-1B change of status and extension of status applications continue to take a frustratingly long time and there is little action on USCIS’ behalf to mitigate that problem. Their best advice is to file as early as possible.

If the petitioner files a Power of Attorney and includes it with the petition, the attorney can sign the forms for the petitioner on an employment-based petition.

Green Cards will not contain a hyphen. They will put a space instead, i.e. Smith Diaz instead of Smith-Diaz.

Both the Texas Service Centers and Nebraska Service Centers will follow Matter of H-V-P. This is an important AAO decision for National Interest Waiver cases.

USCIS confirmed that they adjudicate cases FIFO – First in First Out.

USCIS is actively processing U visa cases.

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The Washington Post has reported a recent malfunction, resulting in USCIS sending hundreds of Permanent Resident (Green Cards) to incorrect addresses. This causes all sorts of headaches, involving USPS and USCIS, and unnecessary delays. It is important to make sure that you are updating your address with USCIS (and if applicable, the Immigration Court and Immigration and Customs Enforcement) whenever you move.

USCIS switched over to the ELIS system in 2012 for delivering Green Cards. A report from the Inspector General of the Department of Homeland Security notes that the number of incorrectly sent Green Cards has increased since then.

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