The Department of Homeland Security (DHS) is poised to waste well over 100,000 employment-based green cards for legal immigrants waiting in the 1.2 million person backlog caused by the low visa caps. Instead of issuing the required 262,000 green cards, the government was only on pace as of April 1 for 113,043. The pace of approvals has increased since then. If it fails to issue these green cards by September 30, it could lose the authority to issue them at all (or will lose the authority—at least based on its current interpretation of the law). Without these green cards, many of these immigrants—primarily from India—would have to wait a lifetime for the chance to immigrate.
Unfortunately, the government is not doing enough to speed up processing and save these green cards from becoming lost. Here is a list of ideas to achieve faster processing:
- Allow travel/work authorization based on I‑485 receipt to free up resources for final green card adjudications. The main issue that USCIS has publicly identified as a cause of the lengthy delays in processing is the lack of manpower. It should look to divert resources to address the processing of employment-based cases. In particular, it should stop requiring applications for advanced parole in order to travel internationally or for an employment authorization document (EAD) in order to be authorized to work during a pending I‑485. It should simply allow proof of a pending I‑485 as evidence of advance parole and work authorization.
- According to USCIS, it takes 97.8 minutes to adjudicate an I‑485. It takes 15 minutes to process an advance parole document and 12 minutes to adjudicate an EAD. USCIS adjudicated 70,023 advance parole (AP) applications in the second quarter of FY 2021—roughly 10,000 I‑485s (possibly more if EB cases are easier to adjudicate). USCIS doesn’t separately delineate employment-based EADs by quarter, but for last year, the agency averaged about 80,000 each quarter—roughly the processing equivalent of 10,000 green cards per quarter. Altogether, getting rid of EADs and APs could generate more than 80,000 more green cards per year.
- Stop RFE-ing for medical exams. Approve with a notice to submit later. USCIS doesn’t require I‑485 applicants to submit medical examinations with the initial I‑485, and since their validity is time-limited (currently 2 years, previously just 1 year), many practitioners regularly wait until USCIS sends a Request for Evidence (RFE). Many applicants also failed to submit them in October 2020 because they wanted to rush to get their applications in so they could take advantage of the massive jump in priority dates that month. The back-and-forth over the medical examinations add significantly to the processing time—something in the range of 2 to 4 months, enough time to push tens of thousands of I‑485s into FY 2021. Rather than reviewing and approving, USCIS reviews and issues an RFE if the medical examination is not included in the initial evidence. Then the applicant must submit the form and wait for USCIS to have time to reopen the case file. USCIS should just approve with a notice that they must still submit the medicals at a later date or face revocation. There is not a statutory requirement to have evidence of the medical examination in advance of an approval.
- Reuse previously submitted biometrics for I‑485s. Another major bottleneck in the green card process is the delay in obtaining an appointment and conducting fingerprint checks at USCIS Application Support Center (ASC). In March 2020, USCIS decided it can reuse biometrics already submitted to the agency as part of some other application (like an H‑1B change of status) for employment authorization document (EAD) applications when the ASCs were closed. Yet because of the closures affecting other categories, a huge backlog developed. Earlier this year, USCIS had a backlog of 1.3 million biometrics appointments with wait times of several months. In May 2021, USCIS also suspended biometric collection for extensions of status for dependents of long-term work visa holders (H, E, L). USCIS should either reuse previously submitted biometrics or temporarily waive the biometrics requirement for I‑485 applicants.
- Stop re-adjudicating down-ported EB2 to EB3 I‑140s. All EB‑2 I‑485 applicants are also eligible to adjust status under EB‑3 category since—by virtue of having a master’s degree—they also meet the bachelor’s degree requirement for EB‑3. Thus, whenever the eligible dates for filing for EB‑3 move ahead of EB‑2 as they did in October 2020, EB-2s may refile as (or “port” to) EB-3s. In order to do this, USCIS requires them to have their employers file a new I‑140 employer petition for them under the new category even though there’s no change in circumstances. The only purpose of this filing is to shift a legal classification with no practical effect. USCIS has already published a memo that instructs officer to defer to an earlier adjudication whenever “adjudicating extension requests involving the same parties and facts as the initial petition or application.” This situation is not exactly the same, but it is certainly within the spirit of that memo. In fact, re-adjudication is even more egregious here because, if the applicant had remained in EB‑2, an updated I‑140 would never have even been required to obtain an approval.
- According to USCIS, it takes 87.6 minutes to adjudicate an I‑140 petition. That’s nearly 90 percent of the time it takes to process an I‑485. USCIS doesn’t report how many I‑140s are refiled EB2-to-EB3 “port” cases, but supposing they are 20 percent of the cases this year, getting rid of these unnecessary adjudications could free up adjudicator time for as many as 20,000 additional green cards annually.
- Stop requiring and reviewing Supplement Js. In 2016, USCIS created a new supplemental form to the I‑485 called the Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). The purpose of the form is to have the employer in cases where the I‑140 petition is not concurrently filed with the I‑485 reaffirm the intention to employ the applicant. Nothing in the law requires this whatsoever, and it could be easily removed. The reverification is an unnecessary burden on employer and applicant, and because it is a 7‑page form nearly as long as the 9‑page I‑140 adds to the adjudication processing times for the same reasons stated above. At a minimum, USCIS should simply revert to the earlier requirement to submit a letter from the employer.
- Revert to pre-Trump I‑485 form. In 2017, the Trump administration as part of its “extreme vetting” initiative tripled the length of the I‑485 form from 6 pages to its current 18 pages. The new form has many confusing questions like one about any time you were ever “cited” or even “detained” by any law enforcement anywhere in the world. Almost every person who has ever crossed an international boundary has been “detained” in some sense. The form instructions require you to document every such instance. The questions and evidence require more work for the agency because every form and piece of evidence must be manually entered or uploaded into the USCIS system because USCIS lacks any online filing option for I‑485s.
- Whether the full blame can fall on the new form or not, EB I‑485 processing times exploded from 6.8 months in FY 2016 to 11 months by FY 2018 after its introduction. USCIS should stop using it and revert to the 2016 form at least until it has the time to create a new version.
- Pre-certify ability to pay for certain repeat I‑140 petitioners. On every single I‑140 employer petition for an immigrant worker, USCIS requires and reviews documentation from the employer demonstrating that the business is a bona fide business and has the ability to pay the worker, even if they are the petitioner for thousands of other workers. In 2016, USCIS created a “Known Employer” pilot program to allow employers to get “pre-approved” for various elements of the I‑140 and other related petitions. Yet it only ever approved 6 businesses to join the pilot, and in 2020, it allowed the pilot to expire. This is a particularly acute problem for the green card processing delays for concurrently filed I‑140 and I‑485 applications because the I‑485 cannot be adjudicated until the I‑140 is approved. It would move the I‑140 petitions faster if businesses could be pre-approved.
- Mass issue: Ultimately, a much more dramatic step will be necessary to save the green cards that will be lost at the end of the year. One way to save these numbers would be to simply approve all the green cards on September 30 using the discretion given to the DHS secretary in the Immigration and Nationality Act through a policy memo and then revoke them all on October 1. According to section 206 of the Immigration and Nationality Act, this would allow the government to recapture the approved but now revoked green cards. There are other ideas that would require a more dramatic reinterpretation of the statute, which may be feasible as well.
Whatever USCIS does, it cannot fail to save these green cards or the Biden administration will have presided over one of the largest permanent cuts in legal immigration in many years.
