Streamlining to End Immigration Backlogs

Courts have said that America’s legal immigration system is second only to the tax code in its complexity.¹ Still, it is second to none in its use of inefficient procedures to carry out its duties. The multidepartmental division of authority, duplicative reviews, antiquated technology use, outdated bureaucratic procedures, unresponsive customer service, intense and unwarranted skepticism applied to all applicants, and lack of accountability or oversight have no parallel in the federal government. These deficiencies have spawned spiraling backlogs, unimaginable wait times, lawsuits by applicants, and countless mistakes—all of which cost people time, money, and the rights to live, work, and join their families.

The situation is dire. Nearly 24 million requests were pending across the government in 2022.² Applications become backlogged when the number of requests exceeds the number of approvals. Table 1 shows the backlog by agency across the four primary agencies responsible for processing immigration benefit requests. This paper will focus on agencies other than the Department of Justice, which almost exclusively handles removal proceedings in immigration courts. The other agencies have a more significant role in legal immigration procedures.

• The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) handles the broadest range of requests: petitions by family or employer sponsors, work authorizations, adjustments of status inside the United States, and so on.
• The Department of State’s Bureau of Consular Affairs (“State”) processes applications for immigrant (or permanent) and nonimmigrant (or temporary) visas, both of which authorize travel to the United States.
• The Department of Labor (DOL) oversees wage and employment rules for most temporary and permanent visa programs.

As seen in Figure 1, the Department of Homeland Security’s U.S. Citizenship and Immigration Services had a backlog of nearly 8.7 million pending cases in 2022.³ The median wait times across a wide range of form types averaged almost a year, and 20 percent of completed cases at the most-delayed locations waited more than two years to receive a response.⁴ USCIS processing is often only one step in a multiagency process. For employer-sponsored cases, the Department of Labor’s Office of Foreign Labor Certification (DOL-OFLC) takes more than six months to respond to an employer’s prevailing wage request—which is a precursor to another six-to-seven-month process to obtain a permanent labor certification before an employer can legally hire a foreign worker.⁵ The State Department is working through nearly a year’s worth of immigrant and nonimmigrant visa applicants.⁶ Many consulates take more than a year to schedule tourists, visitors, and business travelers for interview appointments.⁷

This paper cannot detail all the procedural inefficiencies in the legal immigration system. However, it does outline the largest ones and some more straightforward problems that the agencies could easily correct. Mostly, the issues outlined in this paper have no bearing on the goals of these agencies’ policies. Instead, the issues thwart the efficient implementation of the policies. Table 2 provides a list of the various reforms proposed in this paper. These reforms can mostly be implemented through regulation (or deregulation), though Congress should require them wherever possible. The agencies will find many of these ideas in their own interest, while others may require a push from Congress or the White House (see Cross-Agency and State Department Issues). For a list of descriptions of various visa categories, see Table 3.

The reforms outlined in this section detail how to correct issues between agencies and streamline problems affecting people who have visa applications pending before the State Department at consular offices worldwide.

The most significant bureaucratic problem stems from dividing immigration authority across multiple agencies. Figure 2 shows the basic divisions. The number of difficulties that arise from moving applicants from DOL to Homeland Security’s USCIS to State and back to Homeland Security, this time for its U.S. Customs and Border Protection (CBP), is lengthy. Rather than a single seamless process, the queues run consecutively: labor certification from the DOL, petition approval from Homeland Security, and visa issuance from State. Files need to be routed from one agency to the next, which should be simple, but it is not. For example, if a petitioner initially indicated that the petition beneficiary was inside the United States, but then the beneficiary had to go abroad during the long wait, USCIS requires a request for a transfer the case to a consulate. Transfer requests had a wait of nearly two years at USCIS’s Texas Service Center in 2022.⁸

The agencies also often duplicate each other’s work. USCIS does defer to prior adjudications of the same issue by its own employees but not those from the DOL or State.⁹ For instance, the DOL decides if a job is temporary or permanent during its labor certification process, but USCIS still insists on reviewing the same issue. Homeland Security and the DOL both check and agree that employer-sponsored immigrants are qualified for their jobs before allowing them to apply for an immigrant visa, yet State still conducts a third analysis of this question.¹⁰ State “recommends” to USCIS that applicants receive a waiver of the J‑1 visa requirement to return to their home countries for two years after their stay, but USCIS still re-reviews the same information to make a final determination.¹¹

For efficiency, ideally, all legal immigration procedures should be handled by a single department. Unfortunately, although Congress briefly considered consolidating State and USCIS functions in the early 2000s, State defended its control over visa adjudications, and no comprehensive reform legislation has contemplated any merger of the immigration functions of USCIS, State, or the DOL.¹² Given this inability to overcome agency turf wars (which can indirectly become congressional committee turf wars), Congress or the administration should create the following:

• A single filing portal where materials can be shared between agencies and employers, and applicants need to upload information only a single time; and
• A White House–level coordinator to remove inefficiencies in the adjudication of immigration benefits between State, USCIS, DOL, and the Department of Justice’s immigration courts.

An immigration agency coordinator would be modeled on the successful Office of the Intellectual Property (IP) Enforcement Coordinator.¹³ Congress created the Office of the IP Enforcement Coordinator in 2008 to harmonize the activities of the dozen or so agencies involved in intellectual property policymaking and enforcement.¹⁴ The coordinator, who is nominated by the president and confirmed by the Senate, oversees the creation of a Joint Strategic Plan on IP enforcement. In 2022, the office had a budget of just $1.8 million.¹⁵ This budget would be a tiny fraction of the $10 billion in expenditures by the legal immigration agencies, and it could save far more money than it costs.¹⁶

Ideally, the immigration agency coordinator could issue binding recommendations to agencies. Even if the role were limited to nonbinding recommendations, the coordinator would be invaluable because no one in the federal government is currently looking at the big picture of how immigration agencies work together. The agencies look out for their own interests, turf, and revenue, and they collaborate poorly on problems that their policies may indirectly create for each other. A coordinator would bring these inefficiencies to light and develop a strategic plan with the agencies to correct them.

The State Department is dealing with a nonimmigrant visa backlog that is causing months- or years-long delays for applicants. State issues visas from more than 180 processing locations worldwide.¹⁷ Given that demand is not equally distributed across the globe and is continuously changing, this decentralized system can produce inefficiencies and inequities in processing times for individual applicants. As seen in Figure 3, in January 2023, 10 percent of consulates took more than 14 months to process business traveler and tourist visas, while 10 percent took fewer than seven days. The massive disparities between consulates mean that the capacity to process visas could be more efficiently distributed worldwide.

One way to reduce this inefficiency is to authorize remote nonimmigrant interviews. State is already remotely adjudicating thousands of applications for applicants when an interview is not required, but it has failed to adopt a similar policy for interviews.¹⁸ State is behind the refugee division of U.S. Citizenship and Immigration Services, which is already using remote video interviews to conduct refugee interviews. In December 2021, State authorized USCIS to have applicants appear at U.S. embassies for video interviewing by USCIS’s officers elsewhere.¹⁹

State has implied that it may lack statutory authority for remote nonimmigrant visa interviews, but the statute authorizes the Secretary of State to waive the in-person requirement when it is “in the national interest of the United States” or “necessary as a result of unusual or emergent circumstances.”²⁰ The pandemic undoubtedly qualifies as such a circumstance. Accordingly, State should use this authority to immediately allow remote nonimmigrant visa interviews using videoconferencing technology, just as components of USCIS often did during the pandemic.²¹

One of the immigration system’s most critical cross-agency inefficiencies arises when the Department of Homeland Security (DHS) has authorized applicants to extend or change to a nonimmigrant (i.e., temporary) status while they are in the United States. But if the person temporarily leaves the United States, DHS will not authorize travel back to resume that status without a new visa issued by the State Department. Even though the legal criteria for extension of status cover the requirements for a visa, the State Department will not automatically extend visa validity in cases where DHS’s assessment is that the person meets the requirements. This bifurcation of visa issuance and status means that applicants can simultaneously have the right to live in the United States, but they cannot leave and return without undergoing a duplicative process to obtain a new visa.

H‑1B skilled temporary workers often face this problem because, although the initial visa is valid for only three years, workers can renew their status in the United States at the three-year mark with USCIS. As a result, if the workers travel abroad for any reason, they need a new visa, even though USCIS has already approved them for status in the United States. State recently announced that it would start to permit renewals of visas in the United States, which helps with the situation,²² but there is a better fix that would reduce the burden on the agency.

Current State department regulations already allow the use of an expired visa in this situation if the travel abroad was less than 30 days and if the visa holder travels to Mexico or Canada.²³ Holders of expired student visas may also resume status after trips to the Caribbean and Bermuda. This process is known as automatic visa revalidation. DHS officials sometimes refuse to use this process (without providing any justification), which creates uncertainty about using this process.²⁴ But even if DHS grants readmission, State’s regulation only extends the visa validity to the date of readmission, not to the date that the person’s status in the United States expires. This regulation means that people cannot go to Mexico, have their visas extended, and then travel to any other country.

State should apply its current automatic visa revalidation policy worldwide, extending the validity of any expired visa if the applicant has been approved for status in the United States. This move would significantly reduce the number of visa applications and eliminate a large portion of the nonimmigrant visa backlog, clearing the path for new visa applications. DHS’s regulations provide it with independent authority to authorize readmission with an expired visa in cases of an “unforeseen emergency,” which undoubtedly would include the COVID-19 pandemic and resulting closure, either fully or partially, of U.S. consulates.²⁵ DHS could use this authority without issuing a new regulation and immediately begin readmitting people with expired nonimmigrant visas.

Another way to reduce State’s nonimmigrant visa workload is to issue visas with longer validity periods. By statute, the maximum nonimmigrant visa validity periods are based on the foreign state’s reciprocal treatment of U.S. citizens and permanent residents.²⁶ But State further limits visa validity in several ways. First, its regulations cap the maximum period at 10 years.²⁷ This cap should be removed, keeping visas valid for as long as the visa holder abides by the terms of the visa and so long as the foreign state provides U.S. citizens with the same rights.

Second, State regulations limit H‑1B, H‑2A, and H‑2B temporary workers to visas valid for only as long as their initial visa petition (no more than three years for H‑1Bs and no more than one year for H‑2s).²⁸ But the maximum period of validity would be as long as five years in many countries, if the policy is based on reciprocity, giving workers between two and four additional years of authorized travel on a single visa.²⁹ State already executed this proposal in 2012 for L‑1 temporary workers (skilled workers transferring between foreign and U.S. offices of a U.S. multinational company). It stated that removing the connection between the petition and the visa validity would “assist beneficiaries of petitions for L status who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time than the initial validity indicated in the petition approved by DHS and who have extended their L stay while in the United States.”³⁰ This improvement would also be true for H temporary workers.

Third, State should negotiate longer visa validity periods. In India, for example, the H‑1B validity period is a month shorter than the H‑1B employer petition validity period of three years, while the maximum period based on reciprocity is five years in most other countries.³¹ The department should focus on increasing validity periods for all visa categories by negotiating with foreign governments for better treatment of U.S. citizens and permanent residents. Better reciprocal treatment would benefit U.S. travelers and reduce the agency’s workload.³²

This section will detail reforms to reduce backlogs at USCIS, which handles the broadest variety of immigration benefit requests.

DHS regulations require that applicants for adjustment to legal permanent residence in the United States (green card applicants) apply for an “advance parole” travel document before they leave the country. If they do not, it will consider the adjustment of status application abandoned.³³ But there is no statutory or policy reason to deem an application “abandoned” just because the applicant traveled abroad. DHS usually takes well over a year to adjudicate a green card application, and for asylee and refugee applicants (who already have refugee or asylee status and are now applying for green cards), it can take as long as three years.³⁴ People stuck in the green card backlog who want to travel are forced to seek advance parole and get stuck waiting, creating a backlog within a backlog. The advance parole backlog is now more than 400,000 (Figure 4).

The rule did not exist for nearly the first two decades in which immigration law permitted adjustments of status.³⁵ At that time, the agency had far less work than it does now, and the delays were less significant. But by the 1990s, the rule became such a major problem that in 1999, the immigration service exempted L‑1, H‑1B, K‑3, K‑4, and V status holders from the policy.³⁶ Even L‑1 and H‑1B applicants end up applying for advance parole because—although DHS has extended their nonimmigrant status—their visas have expired, so they cannot travel back to the United States without applying for a new visa from State.

The abandonment rule contributes to the backlog of about half a million advance parole applications. USCIS should start by eliminating the abandonment rule, but it should go farther and authorize travel on the basis of receiving a properly filed adjustment of status if DHS has approved the applicant for status in the United States. If it only went halfway, exempted applicants would still apply for advance parole to avoid the need to request a new visa at a consulate abroad as H‑1 and L‑1 workers do now. Asylees and refugees do not receive visas, so their only option to travel is with advance parole. These applicants have already undergone vetting to receive their current legal status; USCIS should not subject them to another duplicative review to be able to travel and resume their status.

The fastest-growing portion of the USCIS backlog is for employment authorization documents (EADs). At the end of 2022, about 1.5 million applicants were awaiting adjudication of their application—up from fewer than 100,000 in 2009 (Figure 5).³⁷ USCIS has tried to address this backlog by issuing automatic extensions of expired cards for up to 540 days.³⁸ But because renewals must still be filed, yearlong waits persist for new applicants. A better solution would be for USCIS to issue EADs with validity periods long enough to remove the necessity of filing a renewal for 80 percent of the applicants—rather than issuing EADs for arbitrary periods of one, two, or three years as it does now.

For instance, many H‑4 spouses of H‑1B workers awaiting green cards are now preparing to file their fourth three-year EAD application.³⁹ USCIS has recently increased the validity periods for various EADs from one year to two years, claiming that this change “will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.”⁴⁰ But these periods were not chosen by objectively measuring how many EAD renewals these categories actually need, and the periods are still too short for many applicants.

Although increasing the length of EADs to limit renewals would result in more unexpired cards in circulation after they are no longer needed, the alternative is automatic extensions where expired cards are kept in circulation, which creates more problems for employers, employees, and the agency. Without the automatic extensions mentioned earlier, the flood of litigation against USCIS over delays in issuing documentation would be even more overwhelming. A better solution is to increase the validity periods from the start so that at least 80 percent of EAD recipients do not need to refile. The same solution should be applied to advance parole, which is valid for travel for only one year. Authorizing travel for up to two years in situations in which the applicant will need advance parole for that long would dramatically reduce the exploding advance parole backlog.

Filing of applications for other benefits often triggers employment authorization document and travel (advance parole) eligibility. For instance, applicants for green cards may simultaneously request an EAD.⁴¹ Yet, because of the long wait time for an EAD, applicants often fail to receive the benefit of employment authorization as soon as they are eligible. A better option would be to authorize employment when the receipt notice is sent by the agency to the applicant, who will use it in combination with a machine-readable passport to verify identity. In certain circumstances, USCIS already approves work as soon as it has sent the applicant a receipt notice, but only when the applicant is seeking EAD renewal, not applying for EAD eligibility as a new applicant.⁴² The validity of the receipt number can easily be checked electronically on USCIS’s website.⁴³ This change could reduce the number of EADs by hundreds of thousands and free up more resources for processing other benefits.

USCIS requires that dependent spouses and minor children of H‑1B, E, L, O, P, R, and TN long-term temporary workers file extensions of status separate from the worker, contributing to a backlog of about one-quarter of a million extension requests.⁴⁴ USCIS is currently granting at least dependent spouses and children of H‑1B and L‑1 “courtesy” premium processing when the primary applicant pays for expedited processing and files the forms simultaneously.⁴⁵ USCIS recognized that it was more efficient to process the applications together. But because the expedited processing is a courtesy, and therefore not paid for by the applicants, the policy imposes additional unnecessary costs on the agency. Moreover, it does not apply to dependents who file an extension separately for various reasons, subjecting them to a much lengthier wait than the primary applicant.

USCIS should not require extensions of status from nonimmigrant dependents and should admit them for as long as the primary applicant remains in status and the qualifying relationship exists (i.e., the marriage continues and the child is under age 21).⁴⁶ If the primary applicant is denied an extension, USCIS can cancel the status of the dependents. Notably, USCIS already knows a child’s birthday and can (and does) automatically terminate the status on that date. In addition, if a marriage ends, it can require both parties to notify the government of the change, which is prompter than the current procedure.⁴⁷ There is no reason to burden the agency with hundreds of thousands of additional applications.

DHS regulations arbitrarily limit H‑1B, L‑1A, and L‑1B workers to an initial period of status of just three years—significantly less than the periods authorized by the statute: six, seven, and five years, respectively.⁴⁸ H‑1B workers are skilled specialty occupation workers in jobs requiring a bachelor’s degree. L‑1 workers are multinational executives or managers (L‑1A) or workers with specialized knowledge relevant to the business (L‑1B). To obtain the entire period authorized by the statute, workers and employers must file at least one extension and two extensions in the case of L‑1A multinational executives and managers.⁴⁹ DHS rarely denies H‑1B and L‑1 extensions and denied applicants often receive approvals after refiling with corrected information.⁵⁰ When employment ends, employers must notify DHS anyway.⁵¹

The extension process is a waste of DHS and employer resources.⁵² DHS has adopted a completely different policy concerning J‑1 exchange visitors who are admitted for the whole period of their exchange program, up to even 10 years.⁵³ For instance, J‑1 postgraduate medical trainees working at U.S. hospitals need not file extensions of status during their seven-year training, which equals the L‑1A statutory authorized period and exceeds those for H‑1B and L‑1B workers. When the agency decided to lengthen the J‑1 period of admission from one year to the length of their program in 1985, it stated that the change “will reduce unnecessary reporting requirements” and “will concurrently reduce the paperwork burden on the Service.”⁵⁴ J‑1 visa holders were deemed a “low risk in violating their status.”

These comments all hold for H‑1B and L‑1 workers. When the agency last updated the period of admission for H‑1 workers to the current three-year period in 1983, it stated that “extending the initial approval period will greatly benefit the public without causing adverse impact on compliance [because] … extension requests filed by the vast majority of aliens of distinguished merit and ability are routinely granted.”⁵⁵ Those same facts apply with equal force today, but the agency adopted the three-year initial period before Congress had specified that H‑1B workers were entitled to a total six-year period in 1990. It is true that the Department of Labor only also approves H‑1B labor condition applications—a precondition for H‑1B status—in three-year increments, but the DOL reduced the period from the statutory six years in 1994 specifically to match the three years of admission.⁵⁶ The DOL recognized the “burdens” on employers and workers but decided that DHS’s regulation had forced it to shorten the period.

DHS should grant L‑1 and H‑1B status for the full periods authorized by law to reduce unnecessary paperwork. H‑1B researchers cooperating under government-to-government agreements with the Department of Defense already receive an initial period of five years, so there is no technical reason USCIS cannot implement a more extended period.⁵⁷ Other skilled visa programs—specifically, E, O, and TN—have no statutory limit on status at all, but DHS has adopted a short period of status: two, three, and three years, respectively—with the O visa only renewable in one-year increments.⁵⁸ DHS should increase these periods to match the H‑1B visa’s six years. These changes would significantly reduce the number of unnecessary extension requests and streamline USCIS operations.

One major cause of adjudication delays arises when USCIS issues a request for further evidence (RFE) from the applicant, requiring a back-and-forth exchange that can add months to the processing time. But RFEs are often overbroad and unnecessary, are issued when the relevant evidence is already submitted, or are based on a mistaken legal interpretation. For example, USCIS is approving H‑1B petitions after issuing an RFE in a staggering 85 percent of cases, meaning that these RFEs are rarely uncovering issues that will result in denials.⁵⁹ This rate has increased dramatically in recent years (Figure 6).

The USCIS Ombudsman, in 2016, lamented “the continued issuance of overly burdensome and unnecessary requests for evidence.”⁶⁰ The Ombudsman has also noted that USCIS even issues RFEs for evidence already in the file.⁶¹

The following measures could help address this problem:

• Require adjudicators to construe the evidence in the record as being favorable to the applicant.⁶²
• Do not issue RFEs for information held by DHS, such as prior entry records.
• Expand its policy of deferring to prior adjudications involving the same facts and parties by applying it to adjudications by other agencies, not just USCIS, and interpreting as broadly as possible to apply to any issue previously decided by the agency.⁶³
• Reiterate and enforce the prohibition on the still-widely-used broad-brush RFEs, which request all evidence required for approval rather than just the specific missing piece.⁶⁴
• Refund processing fees in cases where the RFE rules are violated.
• Provide adjudicator email addresses with any RFE, denial, or notice of intent to deny so that applicants can quickly contact the adjudicator about evidence that is already in the record, avoiding lengthy mail exchanges.
• Publish RFE issuance rates by adjudicator identification number to allow the agency and public to identify rogue or inefficient adjudicators.

These measures would help reduce unnecessary requests for evidence that slow down the process and effectively make applicants reapply twice.

“Green cards” document a person’s receipt of legal permanent residence (LPR) status. LPR status is permanent, and it cannot be revoked without placing the person in removal proceedings to provide due process before stripping that status from the person for certain violations. Even though LPR status is permanent, USCIS issues green cards with a validity period of only 10 years,⁶⁵ contributing to one of the largest and fastest-growing USCIS backlogs for the I‑90 form, the applications for green card replacement or renewal (Figure 7).⁶⁶ Because it cannot complete renewals in time, USCIS has issued automatic two-year extensions for expired green cards.⁶⁷ Although this move temporarily delays handling the most acute problem, a green card renewal still costs $540, and it is a burden on immigrants and confusing for employers reviewing an expired card.⁶⁸ Employers who reverify the employment eligibility of immigrants whose cards expire have been penalized for discrimination.⁶⁹ Immigrants also face more scrutiny and delays when traveling, and many fear traveling with an expired green card.⁷⁰

Green cards were first issued in 1940, and from 1940 until August 1989—nearly five decades—all green cards had no expiration date, and pre-1989 green cards issued without an expiration date continue in circulation to this day.⁷¹ Nothing in the statute requires green card renewals.⁷² Indeed, the statute seems to contemplate a one-time registration. In fact, nothing in USCIS’s own regulations require the government to issue a time-limited green card or set the validity period.⁷³ The decision to issue time-limited cards was made informally through a policy memorandum without notice and public comment. This 1989 memo contained no justification whatsoever for the change—merely stating that the “card will also contain an expiration date, making the card valid for a period of ten years from the date of issue; the applicant will then be required to obtain a new card.”⁷⁴ This is the only official document requiring a 10-year green card.

In 2007, USCIS published a never-finalized proposed rule to rescind cards without an expiration date and mandate expiration dates on all new green cards. The older cards lacked the security features of new cards, but as to the necessity of mandating expiration dates in general, it merely stated that the “replacement process gives DHS an opportunity to collect updated biometric information, conduct background checks, and issue updated cards.”⁷⁵ This explanation might make sense for legal permanent residents who received green cards as children under the age of 14 because they do not submit their fingerprints. A time-limited card is reasonable in those isolated cases, but all other green card recipients supply their fingerprints at the time that they apply. If USCIS wanted to run a background check every 10 years on green card holders, it could do so without requiring them to pay $540, go to Application Support Centers to submit fingerprints, and file an application.

Moreover, unlike in 1989 or 2007, all fingerprints submitted to the FBI at the time of a criminal arrest by federal, state, or local law enforcement are now run past DHS, alerting it to any legal permanent resident’s criminal activity.⁷⁶ This means that DHS does not need to rely on the green card renewal process to obtain real-time updates about new crimes that a green card holder may have committed. Moreover, under the law, legal permanent residence can only be stripped through removal proceedings, so a renewal cannot be denied for criminal activity anyway,⁷⁷ and an expired card will not prevent a holder outside the United States from returning.⁷⁸ Given that it is already issuing two-year automatic extensions, even DHS does not consider this process crucial for security.

USCIS never finalized the 2007 proposed rule that would have made the expiration date mandatory, meaning that green cards without expiration dates continue in circulation, and USCIS can easily switch back to the pre-1989 system of issuing cards without expirations. This move would reduce the burden on immigrants and save the agency resources. In its 2007 proposal, USCIS claimed that it “now has the capability to process a large influx of Forms I‑90 over a short period of time.”⁷⁹ This is no longer the case. From 2007 to 2022, the number of pending applications has exploded from fewer than 20,000 to more than 1 million.⁸⁰ It should go back to issuing green cards without requiring renewals, but if the agency refuses to restore this policy, it should at least double the validity period, which it can easily do without even amending its regulation.

Since USCIS’s creation in 2003, USCIS has added a combined 508 pages to the length of all its immigration forms (Figure 8). The average form length has more than tripled from 3 pages to nearly 10 pages. The green card application, for example, increased from 4 pages in 2003 to 20 pages in 2023.⁸¹ The employment authorization form grew from 1 page and 18 questions to 7 pages and 61 questions.⁸² No change in the law or regulation caused these staggering increases. Instead, the agency decided to collect vastly more information than was necessary to adjudicate the forms.

The Government Accountability Office (GAO) interviewed USCIS officials who stated in 2021 that “longer forms increased the amount of time it takes for staff to adjudicate applications and petitions, and resulted in longer interviews, since adjudicators were to collect and confirm additional information.”⁸³ The increase in form length is a major reason it took adjudicators longer to process 82 percent of USCIS’s form types in 2022 than in earlier years.⁸⁴

USCIS should immediately revert to the earlier form lengths that had been used for decades, and it should conduct a review of all forms to identify redundancies and eliminate them. The additional questions include many fields not required by law, such as information about a person’s parents and former spouses. Other questions have ambiguous wording, such as listing any time a person was “detained” by law enforcement, which—besides huge numbers of minor traffic stops—would technically include every single person crossing legally into the United States or most other countries.⁸⁵

U.S. immigration law has an annual cap on various categories of green cards, but rather than process all green cards as soon as possible into the start of the fiscal year, the law imposes a cap on issuances of 27 percent of the annual cap during any of the first three quarters of the fiscal year.⁸⁶ This little-known provision means that USCIS and State agencies cannot work quickly at the start of the year to use all the available cap space, creating unnecessary delays for green card applicants. As a result, the 27 percent cap needlessly wastes most of the year for qualified applicants who must wait until later in the year. Figure 9 shows the share of green cards issued in the fourth quarter in the past four years. Although the agencies somewhat exceeded the quarterly employment–based cap in 2019, they waited until the fourth quarter to issue 35–50 percent of the green cards from 2020 to 2022.

Congress should eliminate the cap on quarterly issuances and require agencies to issue the full allotment of green cards in the first month of the fiscal year if the number of immigrants waiting exceeds the cap. To use all the available cap space in the first month, Congress should also rescind the statutory requirement that a cap number be “immediately available” when a person is simply submitting an application to adjust status to legal permanent residence.⁸⁷ This phrase is ambiguous, and the executive branch already has the latitude to reinterpret it to allow for early filing, but Congress can force the administration to permit applications to be filed well in advance of when a cap number frees up.

Finally, USCIS should issue documents—green cards or immigrant visas—before the start of the year with a future validity date, so applicants can use their green cards on the very first day of the year. Because the cap limits the number that can be issued in a year, the best USCIS can do is issue green cards with future dates for the next year when cap space is available again. This practice would allow USCIS to work ahead and make sure applicants can use their green cards as soon as the new year starts. This is already precisely how the H‑1B work visa cap is enforced. After their employers win the lottery in March, workers can apply for visas up to 90 days before the start of the year.⁸⁸ H‑1B visas can then be issued with a future validity date of October 1—the start of the fiscal year when cap space becomes available again. There is no reason that this sensible system should apply only to a nonimmigrant program while not also applying to family, diversity, and employment-based green card applicants.

One of the greatest inefficiencies in USCIS is that it has not digitized all its forms, relying primarily on paper-based filings. USCIS’s digitization effort lags behind the other immigration agencies.⁸⁹ Only about 16 percent of applications are filed online.⁹⁰ Only 17 of the 102 application types are available to be filed online at all.⁹¹ In 2021, the DHS inspector general found, “USCIS’ continued reliance on manual processing impeded operations during the COVID-19 pandemic.”⁹² Although the number of online filings increased during the pandemic, they have not kept up with the total number of filings (Figure 10).

Because USCIS relies on paper forms, it must hire staff to open mail and scan the paper documents into its electronic system. These wasted resources could be reallocated to hire additional staff and invest in online adjudication. Moreover, mailroom staff can reject a filing if the staff believes it is incomplete, which sometimes results in erroneous rejections.⁹³ In 2023, USCIS stated, “Every benefit request submitted online instead of on paper provides direct and immediate cost savings and operational efficiencies to both USCIS and filers.”⁹⁴ The USCIS ombudsman also expects that online filing “will speed adjudications as the agency introduces and expands its use of machine processing and artificial intelligence.”⁹⁵

The problems extend beyond forms not being unavailable online. The system for the existing forms is woefully deficient. According to the USCIS ombudsman,

Moreover, except for the H‑1B electronic registration form, the online system generally does not accept USCIS’s power of attorney form, which makes it impossible for attorneys to file on behalf of their clients.⁹⁷ As a result, even for the forms that USCIS has made available online, applicants filed online only 44 percent of the time as of 2020.⁹⁸

Ideally, USCIS should have a fully digitized filing platform for every form that is fully compatible with attorney case management systems and capable of accepting attorney-filed forms. USCIS has most recently stated that it hopes to complete its digitization plan by 2026—a mere 20 years after it announced its transition in 2006.⁹⁹ As an intermediary step, USCIS should create a secure filing platform that accepts scanned or uploaded application materials as soon as possible, thereby eliminating USCIS’s manual process of opening the paper files and scanning them.

The USCIS backlog for naturalization applicants now exceeds half a million. Wait times are long and vary widely across the country. In January 2023, field offices reported completing 80 percent of cases in between 12 and 24.5 months, depending on location.¹⁰⁰ This variation results from the decentralized processing of applications, which occur at 89 field offices nationwide in 44 states, three territories, and Washington.¹⁰¹ To harmonize wait times and reduce inefficiencies, USCIS should introduce remote video interviews for naturalization interviews and online naturalization oath ceremonies.

In-person interviews are not a statutory requirement. USCIS can meet the requirement that oath ceremonies be conducted in “public” by hosting the virtual ceremonies with multiple participants and leaving the links open to the public. Since December 2020, USCIS has used remote video interviews for thousands of naturalization and oath ceremonies for applicants in the U.S. military stationed abroad.¹⁰² Every USCIS field office has also used video technology to conduct video interviews that occur onsite, but they have failed to deploy them more widely to conduct remote video interviews for non‑U.S. military personnel.¹⁰³ Removing the in-person requirement would mean that applicants could be processed from anywhere on a first-come, first-served basis without wasting time in a physical office.

Oath ceremonies are almost like a second in-person interview, causing further delay and difficulties for applicants and more expense for the agency. Although some applicants prefer in-person ceremonies, USCIS should adopt the Canadian government’s practice of offering a remote option.¹⁰⁴ Remote interviews would also greatly help the processing of interview-required green cards, which can take anywhere from a few months to more than three years, depending on the location and type of application. Such significant disparities in outcomes are both a cause and symptom of an inefficient processing system.

This section details reforms that will streamline immigration application procedures at the Department of Labor.

The DOL is responsible for certifying that employers may hire foreign workers, and it has a backlog of nearly one-quarter of a million cases.¹⁰⁵ The first step of the DOL’s permanent labor certification process is for employers to request a determination of the prevailing wage. The prevailing wage is the wage that must be offered to the foreign worker and is usually based on an annual government survey of U.S. workers, the Occupational Employment and Wages Statistics (OEWS) survey. The DOL publishes the OEWS results on a website, and employers typically make their selections and request that the DOL validate that they selected the right occupation, area, and skill level for the worker.¹⁰⁶

Even though employers are doing most of the work for the DOL, the average wait for a prevailing wage determination (PWD) has grown from about 60 days in early 2016 to 189 days at the end of fiscal year 2022 (Figure 11). These delays can have severe consequences for immigrants. For instance, a delay can prevent an employer from filing a labor certification application before the fifth year of the applicant’s H‑1B status, preventing the H‑1B worker from extending H‑1B status beyond the H‑1B six-year limit.¹⁰⁷ It also means that the green card process generally takes longer, which is a significant disincentive to sponsor foreign workers.

Strangely, although employers of H‑1B skilled temporary workers are required to pay the prevailing wage, they are not required to receive a PWD from the DOL. Instead, they may look up the wage on the DOL website and pay the correct wage.¹⁰⁸ The DOL should apply this streamlined process to the permanent labor certification program as well. The agency lacks the resources to process PWDs efficiently, and the DOL can audit labor certification applications to verify that wages are correct at that stage. Moreover, suppose a green card holder is underpaid. Unlike H‑1B workers, a green card holder can easily change jobs, eliminating any reason to impose a stricter rule for green card holders than for H‑1B visa holders. Removing the burden of requesting a prevailing wage determination would dramatically streamline the green card process.

In 2004, the Department of Labor launched a new process to certify employers to hire foreign workers for permanent positions. The goal was to provide a new electronic process that could automatically flag a small percentage of applications for audits (i.e., deeper manual reviews) while rapidly approving the rest.¹⁰⁹ The DOL said at the time, “We anticipate an electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed.”¹¹⁰ In October 2022, it took 249 days for the DOL to process these applications—four or five times longer than what the DOL had initially claimed in 2004 (Figure 12).¹¹¹ Overall processing times for permanent labor certification applications—including those selected for audits—reached 263 days at the end of FY 22.

For employers that have previously received a labor certification approval, the DOL should automatically issue a certification whenever a case is not selected for an audit and takes longer than 60 days, allowing the employer to move to the next stage of the process. This process would restore the original purpose of the 2004 rule, which prioritized using electronic processing to expedite approvals. A 60-day rule is longer than the 45 days that Congress has given the DOL to process H‑2A temporary labor certifications.¹¹² The denial rate for unaudited cases is already a negligible 1 percent—and even less for companies with more than 50 employees.¹¹³ Although the DOL has never published statistics on the reasons for denials, practitioners report that the overwhelming majority are based on technical violations, not substantive issues (such as a qualified U.S. worker applying for the job).

Employers still would have to recruit U.S. workers, but the timeline for employers and workers would be much more transparent. Companies would still face the prospect of random audits, so they would still have an incentive to follow the regulations. The DOL could also select some unaudited cases to be processed in less than 60 days to keep employers extra scrupulous about filling out the forms correctly. This change would immediately slash about three-quarters of the backlog, because analyst reviews account for such a large portion of it.¹¹⁴ This change would save both employers and the DOL significant time with almost no measurable difference in outcomes.

The DOL publishes a Schedule A list of occupations facing labor shortages that do not require an individual labor certification, which involves extensive and expensive efforts to recruit U.S. workers. The DOL is responsible for administering the labor certification in a way that assures that it does not unduly burden businesses with a legitimate need for workers. Yet, the DOL has failed to update its Schedule A list since 1991, limiting it to just two occupations: nurses and physical therapists.¹¹⁵ It has not recognized a shortage for any other occupation in more than three decades. The list included physicians, but the DOL removed them in 1987, citing a supposed physician surplus.¹¹⁶ Earlier, Schedule A featured other occupations including pharmacists and many types of engineers.

Dozens of occupations in 2022 had at least a 99 percent approval rate.¹¹⁷ The high rates of approvals, long delays in processing, and additional costs underscore the need for requiring the DOL to update the Schedule A list for other occupations.

Moreover, despite the number of job openings increasing from a low of 2.2 million in 2009 to a high of 11.9 million in 2022, the DOL did not identify a single new shortage.¹¹⁸ It should update Schedule A on an annual basis, using the most recently available statistics on job openings and labor certification approvals.

One reason the DOL cites for the slower permanent labor certification processing times is that adjudicators have been reassigned to the time-sensitive H‑2A agricultural and H‑2B nonagricultural temporary labor certification programs.¹¹⁹ From 2016 to 2022, the number of H‑2 applications filed by employers doubled. The DOL and USCIS should respond to this trend by certifying H‑2A and H‑2B employers to employ H‑2 workers for a period of up to three years. This change would immediately slash the number of applications by two-thirds and free up more resources to handle the permanent labor certification backlog.

H‑2 employers typically have needs that recur year after year, and the same group of H‑2 workers usually fills that need repeatedly. From the employer’s perspective, these workers are existing employees with a seasonal hiatus, not new workers. But the DOL and USCIS, failing to recognize this business reality, require recertification annually.¹²⁰ Annual certifications are costly for employers and the agency, and they rarely turn up new U.S. workers. The certification rate for H‑2 positions in general exceeds 95 percent. For employers with prior experience in the program, the certification rate is nearly 99 percent.¹²¹

Moreover, requiring employers to disclose that they have a three-year, recurring need in job advertisements and soliciting commitments to fill those jobs for three years might encourage more U.S. workers to apply if they know that the job is not just for a single season. The three-year limit would align with USCIS’s three-year limit on status for an H‑2 worker.¹²² It would also align with H‑1B regulations that only require a new labor condition application every three years, instead of every year.¹²³ Harmonizing these different periods would streamline the H‑2 process and reduce the burden on the agency, freeing up resources for its essential tasks.

With backlogs in the tens of millions, U.S. immigration agencies face a critical choice. They can either streamline away unnecessary requirements or plod along—making do with massive backlogs and gigantic wait times, while charging applicants ever more money to fund an inefficient system. The proposals laid out in this paper would radically reduce the number of filings, simplify procedures, and reduce backlogs across agencies. With millions of fewer filings and more straightforward processes, the immigration agencies can focus on faster processing times and better service for applicants, as well as the American employers trying to hire them.

Bier, David J. “Streamlining to End Immigration Backlogs,” Policy Analysis no. 943, Cato Institute, Washington, DC, April 20, 2023.