USCIS Delays Jeopardize Timely Immigration

Mark Naugle

How Several Factors Have Resulted in a Compounding Delays to Immigration Services

United States Citizenship and Immigration Services (USCIS) has never been known for being a particularly expedient agency. Waiting for months or even years to hear a response to an application, petition, or form has become frustratingly endemic to the U.S. immigration process.

Unfortunately, multiple factors have converged to exacerbate delays that may jeopardize USCIS’s ability to efficiently process critical immigration documents. Below, we review the source of the delays are occurring and what they mean for you.

COVID-19 Accelerates a Budgetary Shortfall

The COVID-19 pandemic has devastated numerous areas of the United States economy, especially as many industries were forced to shut down or drastically modify optimal operations in an effort to reduce the spread of the virus. USCIS was no exception, shutting down all of its offices on March 18, 2020. While some emergency services continued where possible, non-emergency, in-person services – necessary to many immigration processes that require an in-person interview – did not begin to resume until June 4, 2020.

Not only did this lead to a tremendous backlog of cases, inevitably triggering delays, the stoppage also worsened a growing budgetary crisis at the agency. Earlier in the year, USCIS noted they would be forced to furlough more than 13,000 employees – about two-thirds of their staff – if they did not receive sufficient emergency funding from Congress.

Were USCIS to initiate that level of staff reduction, legal immigration services would likely halt in practice. The agency would simply not have the manpower to effectively and efficiently process applications, conduct interviews, or manage other critical elements. Despite USCIS’s public pleas, Congress remained gridlocked, with no formal financial support ratified.

On August 25, 2020, USCIS announced they had managed to avert the planned furloughs. Thanks to a budget restructuring, the agency will be able to operate without further funding allocations through the end of the 2020 fiscal year.

Achieving this result required severe cost reductions throughout USCIS. The agency is still warning that there will still be increased delays, as those savings came at the expense of some federal contracts and support systems that assisted in application services.

The Continuing Budget Crisis

USCIS has warned the budgetary crisis is not over. Furloughs are still possible if Congress does not grant the agency significantly more funding by 2021. Again, most legal immigration processes would cease to reliably or efficiently operate if a majority of USCIS staff were furloughed.

The fate of USCIS might unfortunately come down to politics. President Trump has made reducing immigration a central campaign promise, and many new restrictions on legal immigration have helped define his first term in office. Should he be reelected in November 2020, it is possible the White House and any Republican majorities in Congress could seek to blunt USCIS’s efficacy as a means of reducing immigration.

This is especially important to consider for those preparing to file new applications for various immigration services. As most applications can take many months or even over a year to process, it is possible your case could be impacted by the budgetary conflict if we enter 2021 without a resolution.

Should USCIS be forced to furlough workers, progress on your application processing could potentially freeze. With new cost reductions, you are likely to already experience significantly longer wait times than usual. As such, it is critical you consider filing the necessary applications as soon as feasibly possible.

Document Production Delays Impact Employers, Employees, and Green Card Holders

When you are approved for a visa, work permit, or green card, you generally receive the physical card that permits your entry into the United States within days (or in some cases several weeks) of approval. However, consequences of the USCIS budgetary shortfall have led to significant delays to producing and distributing these documents, causing problems for employees, employers, and lawful permanent residents.

The delays appear to stem from USCIS decreasing its ability to produce the secure documents after ending a contract with a third-party company who aided in their printing. The budgetary crisis prompted a hiring freeze at the agency, meaning they are not currently able to bring on new contractors to assist in restoring lost capacity. Consequently, USCIS’s inability to efficiently print secure documents, including green cards and Employment Authorization Documents (EADs), is likely to continue for the immediate future.

This can create devastating consequences for people who depend on the timely receipt of these documents. Employees operating on work permits are required by law to renew their EAD every 1 to 2 years. Generally, an employer needs the EAD document itself to allow an employee to continue working. An approval notice from USCIS is not sufficient.

An employee who has been approved for their EAD removal but has not actually received the document is left in an unenviable position. Their U.S. employer cannot legally permit them to work. If they choose to look the other way, they could face civil infractions, including fines.

Green card holders have been placed in a similar dilemma. Nonconditional green cards must be renewed every 10 years to update biometrics. This is generally a formality – the lawful permanent resident’s eligibility is almost never in question during this process – but you still must communicate with USCIS and receive a new physical green card.

Not receiving a new green card in a timely manner can create serious complications. Lawful permanent residents who are at least 18 years of age are required by law to carry their green card with them at all times. Not doing so can subject lawful permanent residents to fines or even prison time. You also need a valid green card to reenter the country, demonstrate eligibility for employment, and access other benefits they are entitled to.

These document production delays relating to the budgetary shortfall create significant, practical problems for both American entities and immigrants entitled to benefits they were approved for. If you are experiencing a problem as a result of these delays, you should speak to an immigration lawyer as soon as possible.

Extension and Change of Status Processing Delays Create Complications

The COVID-19 pandemic and budgetary crisis have resulted in significant delays to processing practically all types of applications. This can prove worrisome for nonimmigrants who are expected to depart the United States when their authorized term concludes. Staying in the United States beyond your permit’s expiration date can lead to your accruing unlawful presence time, which can make it more difficult or even impossible to legally immigrate in the future.

Many people in this situation have filed to change or extend their status, but delays might prevent USCIS from responding before the date the nonimmigrant is expected to depart the country. Fortunately, USCIS has issued guidance relating to COVID-19 delays that signal some flexibility and lenience when dealing with delays and the filing of delinquent applications.

Generally, one does not accrue unlawful presence so long as you file a nonfrivolous change or extension of status on-time. USCIS should acknowledge the receipt of your application, at which point your expiration should be extended until a decision has been made. The agency has also indicated that they will consider complications resulting from COVID-19 as a potential “special circumstance” to justify late applications.

Still, you should expect significant delays when anticipating the result of your extension or change of status application. To avoid complications, file the relevant application before it is due and make sure you receive a receipt that permits you to remain in the country until a decision is reached.

Get Help with USCIS Delays

Long waits are a fact of life when dealing with USCIS, but they should never imperil your ability to seek legal immigration or access benefits you have been granted. Attorney Mark Naugle has been assisting his Salt Lake City community with immigration problems of all types for over a decade. At Monument Immigration, our team can assist you with immigration issues of any size or complexity. We have extensive experience communicating with USCIS and work to stay abreast of all current developments. If your case is experiencing complications as a result of COVID-19, the budgetary shortfall, or any reason, we want to help.

Call (801) 609-3659 or contact us online to schedule a free consultation. We offer our legal services in English and Spanish.