AILA Doc. No. 19032730 | Dated March 26, 2019
AILA member Shachar Shawn Malachovsky discussed the top five issues surrounding USCIS delays under the Trump administration.
One: Processing times for USCIS cases are delayed:
According to a recent AILA Policy Brief, "USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration," the overall average case processing time increased by almost 46% over the past two fiscal years. The processing times for 94% of USCIS' form types (the different types of case documents) have been severely delayed, including the processing of green cards for family members, employment authorization applications, and U.S. naturalization/citizenship applications. According to the USCIS "net backlog" (active cases past their targeted time goal), millions of cases are delayed and the agency had its' highest delays on record in FY2017 (Annual Report on the Impact of the Homeland Security Act on Immigration Functions Transferred to the DHS). These delays have consequences that must be considered when starting an immigration case.
Two: Medical Exam I-693:
When filing a family-based adjustment of status case, a common practice has been to submit an I-693 medical exam for the immigrant along with the immigration package (I-130/a, I-485, I-864, I-765, I-131). However, the medical exam is only valid for two years (USCIS Policy Manual Update, October 2018). Delays in scheduling of adjustment interviews may require new medical exams to be brought to the adjustment interview, adding additional costs to the immigrant. One solution may be to submit the initial case without the I-693 medical exam and wait for the interview notice to obtain the exam. The downside of this tactic is that if the case is ready for the adjustment interview sooner than the two years, USCIS may issue a request for evidence (RFE) for the medical exam rather than scheduling the interview. It is important to note that USCIS may not always issue the RFE, and instead may just schedule the interview requiring the exam.
Three: Employment Authorization (EAD) and Advance Parole (Travel) Cards:
In 2011, when the EAD and Travel cards were first combined for certain cases (such as adjustment cases), the processing time was supposed to be 90 days or less. Currently, the processing time for EAD/Travel is approximately four to six months, which is delaying when immigrants can begin working in the United States or travel abroad without abandoning their adjustment application. Many of these cards have a maximum one-year expiration date. Since we are seeing overall delays in the green card cases extending beyond a year, these cards are expiring before the cases are adjudicated. Therefore, renewals must be filed. Please note while there are no filing fees for renewals in pending adjustment cases, there may be fees for the preparer. Additionally, there are often gaps between the expiration of the card and the approval of the renewal. USCIS has attempted to remedy this problem by granting automatic extension of employment authorization (for certain categories of EAD cards) for 180 days when timely filed. Presenting the employer with a timely filed receipt notice for the renewal along with the expired EAD should allow continued employment in some circumstances. However, some employers may not understand these automatic extensions, and this may cause issues an immigrant's employment. The automatic extension also does not extend to Advance Parole, and immigrants will not be able to travel until the renewal is approved.
Four: Additional Supporting Evidence and Updates:
Whether it's an adjustment case, a petition to remove conditions on a permanent residence case, or an application for naturalization, additional evidence and updates will likely be needed once a case is delayed over a year. Prior to the current extensive delays, most adjustment cases took less than six months, most joint petitions to remove conditions on residence cases took less than seven months, and most naturalization cases took less than six months (See historic national average processing times). Now these cases are often taking a year or more. Since the supporting evidence is old/stale by the time the interview is scheduled, a year or more down the line, immigrants must bring a lot more documentation as supporting evidence spanning the time frame they waited for the interview. People move, change jobs, travel abroad and have other changes which all must be updated and accounted for with evidence at their interviews. While bringing updated supporting evidence has always been needed at the interview even prior to the delays, due to the lengthy delays there is a greater likelihood of major life changes that may affect the eligibility of the case. The amount and complexity of the evidence to support the delayed case at the time of the interview has increased and must be carefully prepared and discussed with the immigrant throughout the process. The additional work for attorneys preparing/updating these cases and perhaps a necessary increase in emphasis for attorneys to appear with immigrants at their delayed interviews may cause adjustment in attorneys' fees as well.
Five: Extreme Vetting Security Protocols and Delays.
The Department of Homeland Security (DHS) has begun to implement "extreme vetting" security protocols which may be contributing to these delays. According to the recent AILA Policy Brief mentioned in paragraph 1, USCIS is transforming from the service-oriented benefits agency that Congress intended, into a third immigration enforcement component of DHS. In USCIS's growing prioritization of immigration enforcement we are seeing more interviews, ICE arrests, fraud investigations, and a new Notice to Appear (NTA) policy for petitions and applicants that have been denied, instructing individuals to appear before an immigration judge which is the first step in starting a removal proceeding against them (Notice to Appear Policy Memo). Risk analysis for immigration cases has always been a priority but with the policy of "extreme vetting" this analysis must be reevaluated and adjusted before starting an immigration case.
The reality today is that USCIS cases have long delays and will likely remain in this trend for a long time. That is why we must be aware of and prepare for the consequences of the delays.
Shachar Shawn Malachovsky is the principal attorney at Malachovsky Law Office P.C. representing immigration families in New York, around the country, and world.
Cite as AILA Doc. No. 19032730.
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