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Two Immediate Ways To Reduce Immigration Processing Backlogs

Like the rest of the country, USCIS offices were shut down and biometrics appointments could not be conducted. As a result, an already long wait became unprecedentedly longer.

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The immigration “invisible wall” the Trump administration erected is very real and is having a lasting impact on the system. Indeed, newly appointed Department of Homeland Security Secretary Alejandro Mayorkas recently stated that “the prior administration dismantled our nation’s immigration system in its entirety.” Rebuilding it brings enormous challenges. Almost every issue needs to be prioritized — from reversing the travels bans and undoing damaging executive orders to confronting the humanitarian situation at the border.

One pressing issue is the unprecedented backlog of cases waiting to be processed by the U.S. Citizenship and Immigration Services (USCIS). The effects of the pandemic coupled with a number of changes by the Trump administration under the guise of extreme vetting have created a huge bottleneck in the system. In my opinion, two actions can reduce it immediately — eliminate some mandatory interviews and eliminate biometrics requirements for certain visa applicants.

Eliminate Mandatory In-person Interviews For Certain Cases

When Trump took office, not only was there a quick succession of executive orders, such as the “Muslim” ban, “Buy American Hire American,” and others, there were also policy and procedural changes that immediately affected the length of time it took to process cases.

One such policy was implemented in August 2017. The Trump administration required that everyone applying for legal permanent residency (a green card) and filing Form I-485, needed to attend interviews in person. In the past, those applying for green cards based on employer sponsorship, such as H-1B visa holders for example, would not need to attend such interviews because the thinking was that the various background checks from FBI, Interpol, and others were sufficient. Now all that has changed. 

USCIS data shows that 118,719 employment-based cases were pending between July 1 and September 30, 2020. Additionally, there were 613,247 total green card applications pending and awaiting interview. In the past six months, USCIS has confirmed a significant delay in opening envelopes and processing new cases in its system. Therefore, the number of pending cases is likely to be much higher. Your guess is as good as mine as to when this backlog will clear.

Another change that required in-person interviews came in November 2018, when the administration introduced a new policy memo ramping up scrutiny on legal permanent residents who were in the U.S. on conditional green cards. Suddenly, people whose green cards were based on their marriages to U.S. citizens needed to show up in person to prove their continued bona fide marriages in order for conditions to be lifted.

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Previously, applicants could do that on paper, and in most cases, those interviews would be waived. Only those whose paperwork raised further questions with immigration needed to show up in person. Though USCIS went back and forth a while on this policy, it basically resulted in almost all applicants being subject to in-person interviews. And again, similar to what happened with employment-based visas, the backlog grew immediately.

Eliminate Biometrics Requirements

Before Trump, certain immigration applicants did not require fingerprinting or biometrics, such as tourists extending their visas or the dependent spouses of work-visa holders, like those with H-1Bs. As part of the “extreme vetting” policy mentioned above, the administration began requiring biometrics for those using Form I-539 to convert a nonimmigrant status or extend their stay in the United States. It created an instant backlog.

That backlog was exacerbated by two other problems. First, an immediate halt of international travel in March 2020 because of the pandemic resulted in a greater number of travelers either changing or extending their statuses to remain in the U.S. For example, tourists on B-2 visas, unable to leave because of cancelled flights or countries closing borders, could file a Form I-539 to request their stay be extended. Or the dependents of work-visa holders, who in the past could travel to a U.S. embassy abroad to renew their visas, were now compelled to file that same form. (It should be noted that dependents could always file Form I-539, but many chose to go to the embassy.) Suddenly, all of them needed to submit biometrics information.

Secondly, like the rest of the country, USCIS offices were shut down and biometrics appointments could not be conducted. As a result, an already long wait became unprecedentedly longer. A year later, many people are still waiting either for appointments or for their cases to be processed.

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The biometrics requirements created an additional problem for work-visa spouses. While those obtaining work visas, such as H-1B, or L-1s, do not need to be fingerprinted, their spouses suddenly did. As a result, the spouse’s case could no longer be fast-tracked alongside the case of the primary visa holder, who does not need to be fingerprinted. That delay can have a domino effect on a couple’s lives. With the work permit delayed, the spouse is prevented from working and contributing to the household. And it doesn’t only affect the family, it also affects the applicant’s U.S. employer, which now has to come to terms with an unpredictable job position.

Benefits Of Reversing Policies

The backlog can be somewhat repaired by immediately reversing both changes and returning to pre-Trump policies, which the Biden administration can do easily. 

Prior to the Trump administration, routine cases such as extending one’s visitor status or processing Form I-485, which employment-based applicants use to obtain green cards, took six to nine months. Over the past four years, processing times have crept up to almost two years. And during the pandemic, that timeline is now uncertain.

Eliminating the biometrics requirement will have a dramatic effect on reducing the backlog it helped to create. It will help officers get their caseloads to a reasonable level. It will help applicants move on with whatever awaits them — be it travel, school, or work. And, in the case of the work permit delay, the American employer can get the employee back to work.

Meanwhile, the backlog of people waiting for in-person interviews include family-based applicants, naturalization applicants, asylum applicants — basically everyone. USCIS has slowly resumed processing those cases, but at the same time needs to be mindful of the health of its staff and social distancing requirements. Eliminating this requirement would drastically reduce the time officers have to spend in front of people. It would also free up their time to focus on cases that really should have in-person interviews. And it would be better for the economy to get backlogged people on the way to being secure and stable tax-paying residents.

Clearly, eliminating biometrics and interview requirements for some cases could be one of the easier and quicker policy changes that will result in an immediate benefit for all.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.

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