U.S. Citizenship and Immigration Services’ (USCIS) processing times continue to lag compared to previous years, according to data recently released by the agency. This is especially true for foreign nationals with pending green card applications whose average wait time has increased from six-and-a-half months in fiscal year (FY) 2015 (October 1 through September 30) to more than a year in the first quarter of FY2019. Wait times are not expected to improve anytime soon.
The chart below represents a sampling of processing times (in months) as represented in USCIS’s table of national average processing times for all USCIS offices for the forms most commonly associated with nonimmigrant visas and those used when pursuing permanent residency through employment.
|FY2019: First Quarter
I-129: Petition for a Nonimmigrant Worker
(H-1B, L-1, TN, etc.)
|I-131: Application for Travel Document – Advance Parole
|I-140: Immigrant Petition for Alien Workers
|I-485: Application to Register Permanent Residence or Adjust Status – Employment Based
|I-539: Application to Extend/Change Nonimmigrant Status
|I-765: Application for Employment Authorization
What Is Causing the Delays?
Processing backlogs are not a new problem for USCIS; they existed long before President Trump took office. But several of the Trump administration’s newly implemented policy changes, those focused on the “extreme vetting” of visa applicants, are likely contributing to some of the steep jumps in processing times that began in FY 2017, after President Trump took office. Below are examples of Trump administration policy changes that are thought to have directly contributed to USCIS’s increased wait times:
- In August 2017, USCIS resurrected the requirement that all employment-based green card applicants (and their dependents) attend in-person interviews. Although this requirement was always in place, USCIS had routinely waived the interview requirement for decades, finding that employment-based green card candidates were not high security risks (especially given that they had already undergone in-depth vetting during the lengthy green card process). As a result, there are now more cases in line for interview appointments, and because USCIS cannot approve cases until completing interviews, total processing times have increased.
- In October 2017, USCIS revoked a longstanding policy that allowed immigration officers to defer to prior determinations of visa eligibility when adjudicating extensions of nonimmigrant status (H-1B, L-1, etc.). Petitioning employers must now anticipate that immigration officers will treat every request for an extension as if it were a new case, even if little (or nothing) has changed since the initial filing. As a result, immigration officers must spend more time reviewing each case before they can approve it.
USCIS also recently announced that beginning March 11, 2019, it will be implementing a revised Form I-539, the form used to apply for an extension or change of nonimmigrant status. In addition to the form change, USCIS will be requiring applicants and their dependents (regardless of age) to attend biometric appointments. We expect this new biometrics requirement to create additional processing delays for nonimmigrant visa applications (H-4, L-2, etc.). The biometrics requirement may also impact the approval of employment authorization documents filed in conjunction with Form I-539.
Processing delays are likely to persist as USCIS grapples with changing priorities and an increased workload. Employers and employees may want to plan ahead and be mindful of upcoming expiration dates. Employers may find it useful to file for immigration benefits as soon as permitted, which may mean preparing cases in advance (where possible). In some cases, processing can be expedited for a fee by filing a request for premium processing. However, the premium service is not available for all visa classifications and is subject to suspensions by USCIS.
More detailed information about processing times for each service center is available on the USCIS website. It is also worth noting that the processing times provided represent the average processing time across all USCIS offices, and may not reflect the processing time for any individual application.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to this matter and will post updates on the Immigration blog as additional information becomes available.