Over the past year, I’ve written extensively about severe delays in immigration processing by the United States Citizenship and Immigration Services (USCIS). The delays were caused by some of the policies created by the previous administration, which were then compounded by the COVID-19 pandemic as USCIS and embassy offices closed down entirely for many months. It has been an impossible task coming out of that backlog.
This backlog is unprecedented. It is life-hindering for applicants waiting for a benefit — whether a green card, work authorization, citizenship, or anything else. But, in fact, it is terrible for the economy too. Businesses cannot afford to shoulder the burden of such delays. Employers spend thousands of dollars and wait several years to see the completion of the green card process. They have to be careful not to promote loyal, experienced, and trained staff during that period because it may jeopardize the pending application. Add that to the nationwide labor shortage, and we have a recipe for an economic downturn. The administration and Congress do recognize the profound impact of such delays. And finally, both Congress and the administration have taken some action.
On March 15, 2022, the Omnibus Appropriations Bill was passed by Congress. It includes over $200 million more from the previous fiscal year to fund USCIS. USCIS will likely use some of the funds to reduce the backlog. Among other things, USCIS expects to hire more staff as well.
On March 30, 2022, the USCIS issued a final rule Implementation of the Emergency Stopgap USCIS Stabilization Act, which lays out a plan to tackle the backlog. The rule will “establish new fees and processing timeframes for new immigration benefit requests.” The timeframe for implementation is phased according to the fiscal year to ensure staffing levels and case priorities are considered.
In the fiscal year 2022, which ends September 2022, USCIS will implement premium (expedited) processing for applicants filing for a green card under the following categories:
EB1 multinational transfer
National interest waiver’
Certain categories of Form I-539 (extension of stay applications), and
Form I-765 (work authorization).
While we don’t yet have a confirmed date for implementation, we can expect it to start relatively soon. The administration did indeed do the right thing by expanding premium processing here. It has been long overdue. We will have to see how these will shake out at the end of the year.
One of the categories of backlogs causing the most suffering is delayed work authorizations. Recently, the USCIS director testified in Congress, confirming that the backlog of work authorization applications is the largest of all. The rule will implement premium processing for some I-765 forms, but not all, until the fiscal year 2025. While premium processing is welcome, the immediate problem of not being able to work will continue for many, unfortunately.
Here are the expected timeframes for premium processing and the associated fees:
Form I-140 requesting EB-1 immigrant classification as a multinational executive or manager or EB-2 immigrant classification as a member of 33 See USCIS Stabilization Act — Fee: $2,500. Timeframe: 45 days
Form I-539 requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status to or extension of stay in E-1, E2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status — Fee: $1,750. Timeframe: 30 days
Form I-765 requesting employment authorization — Fee: $1,500. Timeframe: 30 days.
The news of premium processing is excellent. However, the fees will likely be unaffordable to some, especially in the R-2 religious visa category, where often religious workers are paid a minimum-wage salary. It does appear that people will need to pay two premium processing fees — first, to obtain the prerequisite status that allows for work authorization. Second, to receive the work authorization document. And, to be clear, premium processing fees are an add-on to the regular form fees. I anticipate that these fees will add up quickly and likely prevent many people from taking up this opportunity.
Nevertheless, I am cautiously optimistic even though it may take some time to see progress.
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 is a Puget Sound Business Journal 2020 Women of Influence honoree. Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at [email protected], connect with her on LinkedIn or follow her on Twitter at @tahminawatson.