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Year: 2020

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Increasingly Slow Immigration Processing Times Have Cost Employers $2.4 Billion in Premium Processing Fees Since 2014

By Huddleston Law Group

In recent years, employers have become more aware of the impact that the United States Citizen and Immigration Service’s (“USCIS”) slow processing times have on their employees, business practices, and underlying revenue. To combat the delay, many employers opt to pay USCIS’s $1,440 Premium Processing fee. The Premium Processing benefit allows employers to receive a decision on their case within 15 calendar days.

An exception to the 15-day rule arises if USCIS issues a Request for Evidence (“RFE”) wherein the 15-day clock stops and restarts after the RFE response has been submitted. USCIS issued an RFE in almost 50% of all H-1B petitions in the first quarter of FY 2020, which has added anywhere from 2-8 weeks to the processing times for employer petitions depending on the extent of the RFE requests.

Additionally, a rule proposed by the Department of Homeland Security (“DHS”) in November 2019 would alter Premium Processing timing requirements from 15 calendar days to 15 business days, which would further lengthen employer wait times.

Critics argue that USCIS has taken advantage of U.S. employers by failing to hire more staff or implement more efficient systems/methods to combat its processing delays, and instead has become reliant on employers opting to pay Premium Processing fees in order to have their cases processed in a timely manner. The Trump administration has exacerbated the problem by instituting a hiring freeze for USCIS which bars the agency from hiring any new staff with a limited exception provided for asylum officers. Additionally, the administration’s FY 2020 budget transferred over $200 million in USCIS fee money to Immigration and Customs Enforcement (“ICE”).

Since fiscal year 2014, USCIS has generated $2.39 billion in Premium Processing fees. This staggering figure was only obtained as a result of a Freedom of Information Act request filed by a federal litigator, who stated the following in an interview related to his findings:

“If you don’t upgrade to premium [processing], the agency will take up to a year to make a decision at current rates…If you upgrade, you may get a decision in 15 days. It’s almost like the agency is intentionally slow rolling the adjudication of these petitions as a way of extorting money from companies for premium processing.”*

The chart below outlines the extent of employer-funded Premium Processing Fees for FY 2014 through FY 2019*:

Classification Premium Processing Fees Generated
E $15,506,416
H $1,579,787,435
L $211,115,350
O $111,854,845
I-140 $474,367,750
Total $2,392,631,796

 

When USCIS increased its Premium Processing fees in 2018, it stated that “USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase.” However, policies and practices that followed the fee increase have had the opposite impact on processing times. Members of Congress and employer groups have continued to press USCIS for answers regarding the delays while pushing for policy improvements, but it is uncertain when and if employers can expect any noticeable improvements in their immigration processing times.

*https://www.forbes.com/sites/stuartanderson/2020/03/02/critics-charge-slow-immigration-processing-nets-uscis-billions-in-fees/#60878200457a
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U.S. Issues Travel Restrictions Amid Coronavirus Health Crisis

By Huddleston Law Group

Amid heightening concerns about the spread of coronavirus, the Trump administration announced a temporary ban impacting certain travelers who visited China within the two-week period prior to their entry into the U.S.  The ban became effective on February 2nd at 5:00 p.m. EST but exempts several categories of travelers, including U.S. citizens and Lawful Permanent Residents.

Although not banned from the country, all U.S. citizens who visited China in the two-week period prior to their re-entry into the U.S. face heightened scrutiny. Citizens who entered the Hubei Province will face a mandatory 14-day quarantine upon re-entry; those who traveled more generally to mainland China will undergo monitoring at CBP ports of entry and may require two weeks of “self-monitored” quarantine.

In response to the coronavirus crisis, the U.S. Consulate in Guangzhou cancelled all immigrant visa appointments this week and has not indicated when services will resume.

The full text of the ban, including the exempted categories of travelers, is available here: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/ 

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U.S. Supreme Court Rules in Favor of Trump Administration’s "Public Charge" Policy

By Huddleston Law Group

In a narrow 5-4 decision Monday, the U.S. Supreme Court opened the door for the Trump administration to implement its controversial public charge policy, which expands the government’s ability to refuse nonimmigrant and immigrant visas based on applicants’ likelihood of becoming “primarily dependent” on government assistance.  Federal judges across multiple jurisdictions blocked the policy before it was scheduled to take effect in October 2019, but the Supreme Court has now lifted the freeze, allowing the policy to take effect everywhere. While the policy is aimed at inhibiting the immigration of low-income individuals, the change will add new, burdensome requirements for all nonimmigrant and immigrant visa applicants, including those with high earnings and net worth, by requiring the submission of extensive financial documentation including credit reports, bank statements, evidence of health insurance maintenance, and proof of assets and liabilities.

The policy also expands the definition of who is “primarily dependent” on government assistance.  Under the current regulations, “primary dependence” is determined by an applicant’s use of cash benefits like Supplemental Social Security Income.  The new policy expands the definition to include the use of non-cash benefit programs like Medicaid, food stamps, and other safety net programs.

Public charge denials spiked under the Trump administration even before the policy was proposed, with the State Department disqualifying more than 12,000 visa applicants on public charge grounds last year after rejecting only 1,033 on the same grounds in 2016 under the Obama administration.  The Supreme Court’s decision will likely further embolden government agencies and lead to even higher rates of public charge-based denials.

Lower courts are expected to hear lawsuits on the public charge policy changes in the coming months. The Supreme Court has not ruled on the merits of these lawsuits and it is possible that it will ultimately review the public charge issue again in the future.

Huddleston Law Group will be closely monitoring the policy’s potential impact on our clients’ immigration pursuits while maintaining a proactive approach in our submission and response strategies.

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