The COVID-19 pandemic has had a significant impact on U.S. immigration and, particularly, the issuance of immigrant visas, also known as green cards. During the pandemic, available immigrant visa slots that had been allocated for the family-based preference categories went unused. Under the law, they were then carried over to employment-based preference categories. As a result of slow adjudications and processing delays by the U.S. Citizenship and Immigration Services (USCIS), some of these carried over visas went unused causing an even bigger processing backlog.
Every fiscal year 140,000 employment-based and 226,000 family-based green cards become available. These green cards are allocated to the various preference categories and individuals born in no single country may claim more than 7% of the total green cards available each year. For FY 2022, there are more than 290,000 employment-based green cards be available - how this is possible?1 The vast majority of family-based green cards are adjudicated at U.S. consulates abroad which have been closed or operating at a reduced capacity due to the COVID pandemic. Consequently, unused family-based green cards from the previous fiscal year have been rolled over into the employment-based categories leading to a record number of available employment-based green cards. The dramatic advances in the Final Action Dates and the Dates for Filing in FY2021 were also the result of a large number of unused family -based green cards that were rolled over into the employment -based categories. So long as the pandemic keeps consulates and visa processing services at reduced capacity, rollover from the family -based categories to the employment -based categories is likely to continue.
Unlike family-based green card cases, the majority of employment-based green cards are adjudicated by the USCIS. A recent report from the Department of Homeland Security's (DHS) Office of Inspector General detailed the challenges faced by USCIS during the pandemic. The report found that USCIS processing slowed by 33% in 2020 after its offices reopened that July.2 These delays have added to the backlog of green card cases. At the end of FY 2021, USCIS reported 770,386 pending I-485 cases with 245,490 of these being employment-based.3 This is only a fraction of the more than eight million total cases pending with USCIS at the end of FY 2021.4 USCIS has been able to rapidly adjudicate employment-based adjustment of status (AOS) applications (I-485s) due to its decision to waive interviews for a number of employment-based I-485 applicants. I-485 adjudications have also benefited from ELIS, a USCIS system that enables end-to-end electronic processing. USCIS has experienced issues with ELIS, however. From March 2020 to May 2021, the USCIS ELIS system was down or experienced performance issues for a total of approximately 2,076 hours.5 This is equivalent to 259.5 working days (assuming an eight-hour day) over this thirteen-month period.
While unused family-based green cards (or visa numbers) are required to roll over to the employment-based green card categories under the law, if these family-based green cards are not made available to employment-based applicants, these green cards are lost forever, since federal law does not permit these green cards to be carried over in subsequent years. The failure to utilize these unused green cards only worsens the already large backlog of employment-based green card applicants waiting for a green card to be issued and/or the opportunity to file an application for a green card. There have been attempts by some Democratic members of Congress to include language in President Biden's Build Back Better plan as it moved through the legislative process that would "recapture" unused employment-based green card numbers, but those efforts have stalled along with the bill itself in the Senate.
USCIS's processing delays have not only had an impact on utilizing the unused green cards (or visa numbers) in the family-based green card categories for employment-based green card applicants. The processing delay has been particularly frustrating for those employment-based green card applicants who have been waiting for years and now have children about to age-out. Under the law, once a child turns 21 years of age, the child is no longer eligible to receive a green card through their parent's employment-based green card. While the Child Status Protection Act (CSPA) may provide some relief to these families waiting for their employment-based green card applications to be adjudicated, whose children are approaching 21 years of age, USCIS processing delays and the inability to apply the unused green cards is frustrating.
Under the threat of lawsuits, USCIS attempted to adjudicate as many green card cases as possible by the end of FY 2021, even encouraging applicants to file their medical examination results proactively, instead of waiting for USCIS to issue a Request for Evidence (RFE), requesting that medical results be provided. Despite these efforts, nearly 150,000 family-based and 80,000 employment-based green cards went unused.6 USCIS now faces the same issue this fiscal year with a record number of available employment-based visas (or green cards), but a lack of resources and/or staff combined with office constraints imposed by the pandemic continue to create problems for processing of pending green card applications. In an attempt to utilize resources more effectively, USCIS has formalized the process, which allows an applicant to transfer their Adjustment of Status (AOS) application (Form I-485) to another petition. This new procedure to submit a Form I-485 transfer request should be beneficial to those foreign nationals who had filed an EB-3 downgrade petition in late 2020, along with a Form I-485 application, but who now have a priority date current with respect to their original EB-2 petition.
On Friday, January 21, 2022, USCIS announced that it had received fewer AOS applications in the first (priority workers) and second (workers with advanced degrees or of exceptional ability) employment-based categories than visas available. USCIS announced that it is committed to ensuring the full processing of all available immigrant visa numbers for FY 2022 and is encouraging adjustment applicants to apply in the first or second employment categories if eligible. Further, USCIS is also encouraging AOS applicants who has a pending AOS application under third employment-based preference category - but also has a pending or approved petition and an available visa in the second employment-based preference category, the applicant requests that USCIS "transfer the underlying basis" of the pending AOS application to the second employment-based preference category.
As much as this recent announcement shows a positive trend and, in turn, should result in better utilization of available visa numbers (or green cards), the COVID-19 pandemic has ultimately led to a situation where more AOS applications have been filed with USCIS while the agency has struggled to return to its pre-pandemic level of case processing. USCIS processing times continue to be quite lengthy, even with efforts to reduce processing times. These delays in AOS processing have already led to the loss of green cards that could have otherwise been issued. USCIS has called on Congress to allocate a one-time appropriation in order to clear these backlogs.7 In addition, the Biden Administration recently proposed increased fees for nearly all nonimmigrant visas.8 Given that these fees are not likely to go into effect until September 2022, it is not clear if USCIS will be able to reduce its processing times over the next year and ultimately avoid more available visa numbers from going unused. However, the longer this problem continues, it is likely there may be litigation or some type of congressional action to bring resolution to the problem.
Christopher Olson assisted with the research and preparation of this article.
7. Suzanne Monyak, "USCIS director: Federal immigration funds 'critical' to agency," Roll Call, February 2, 2022: USCIS director: Federal immigration funds 'critical' to agency - Roll Call
8. The Administration's proposal will increase nonimmigrant visa application fees from $160 to $245. The fee for H, L, O, P, Q, and R visa applications would increase from $190 to $310 under the proposal. See Raymond G. Lahoud, "Biden Administration Proposes Increasing Cost of Nonimmigrant Visas," National Law Review, February 10, 2022: Biden Admin Proposes Price Increase for Nonimmigrant Visas (natlawreview.com)
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