On March 29, 2022, the US Citizenship and Immigration Services (USCIS) announced three measures they are taking to increase efficiency and reduce overall burdens on the immigration system: 1. new agency-wide backlog reduction goals; 2. Premium Processing for additional petition types, and 3. a focus on improving timely access to employment authorization documents.1 While the USCIS issued this announcement last year, it remains important for applicants of many different types of immigration benefits. Therefore, in this article, we will "check in" to provide clarification and updates to this consequential USCIS announcement.

Backlog Reductions: One way that the USCIS has been able to cut down backlogs has been to establish an "internal cycle time goals."[i] This is a set of internal metrics intended to improve case processing times. As an example, the agency's processing time goal for Form I-129 petitions is two weeks. A "cycle time" measures how many months' worth of pending cases the agency has for each form type and should be generally consistent with the published median processing time. The "cycle times" are used to measure the agency's progress, on their backlog reduction efforts. It is encouraging to see efforts and goals being made to reduce processing times.2 With the recovery from COVID, USCIS has been able to reduce backlogs in part due to new efficiencies, and also due to a hiring surge. During FY 2022, USCIS has been successful in reducing backlogs. In a December 2022 announcement, USCIS announced that they had utilized more than 281,000 employment-based visas.3 According to the USCIS's FY 2022 Progress Report published in December, USCIS states that the new efficiencies and augmented workforce are slowly beginning to turn the tide.4

Premium Processing Expansion: The USCIS's second effort includes issuing a final rule pursuant to the Emergency Stopgap USCIS Stabilization Act to further expand Premium Processing to more visa categories. For example, Premium Processing is now available to F-1 students seeking Optional Practical Training (OPT) and STEM OPT employment authorization if they are filing for (c)(3)(A) pre-completion OPT; (c)(3)(B) post-completion OPT; and (c)(3)(C) 24-month extension of OPT for STEM students. The expansion was released in two phases:

  • Effective March 6, 2023, those with a pending I-765 application for employment authorization are eligible to file a premium upgrade; and
  • Effective April 3, 2023, those filing a new Form I-765 Application for Employment Authorization are eligible to file with a premium processing request.

The Premium Processing filing fee is $1,500 and requires USCIS to take adjudicative action within thirty (30) calendar days. The request may be made via an online USCIS account or with a paper filing. If an F-1 student files a paper version of the Form I-765, they can still submit a premium upgrade online by first creating a free USCIS online account and referencing the USCIS Account Access Notice they received for the Online Access Code and link their paper filed case to their online account. Note that the OPT Form I-20 must still have been issued within the 30 days preceding the filing of the Form I-765, and the F-1 student must be physically present in the U.S. at the time of filing the Form I-765.

USCIS also announced that efforts are still underway to expand premium processing to students and exchange visitors with a pending Form I-539 application in May, 2023 and to students and exchange visitors filing a new Form I-539 application in June, 2023. The USCIS has also extended Premium Processing to certain employment-based categories including EB-1C (Employment-Based First Class: Multinational Manager/Executive) and EB-2 NIW (Employment-Based Second Class: National Interest Waiver). In a January 2023 announcement, USCIS stated that it is also working toward making Premium Processing available to Form I-539, Application to Extend/Change Nonimmigrant Status.5

As USCIS expands Premium Processing to more petition types, the agency must also adhere to a legislative requirement that prohibits both an increase in processing times for those cases not designated for Premium Processing or an increase in processing times for those petitions filed in regular processing even where Premium Processing is available for that visa type. The outcome of this obligation can result in the issuance of a greater number of Requests for Evidence (RFEs) where USCIS is under pressure to hit the adjudication time requirements; therefore, foreign nationals or their representatives should exercise discretion in deciding whether to request Premium Processing.

Access to Employment Authorization Documents (EADs) and Automatic Extensions: The third of these efforts entails increasing the timely access to employment authorization documents. In an announcement, USCIS states that they are making progress toward a final rule, named "Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants."6 In this policy announcement, USCIS states that the agency has been streamlining EAD processes including extended validity periods for EADs and expedited EAD renewals for healthcare and childcare workers. The primary goal of these efforts is to ensure that individuals do not experience a loss of work authorization while their extension applications are pending.

In addition, USCIS has also temporarily expanded the automatic extension time period from a period of up to 180 days to a total of 540 days to eligible renewal applications. The temporary increase is available to eligible renewal applicants with pending applications if the applicant filed their Form I-765 either:

  • Before May 4, 2022, and the 180-day automatic extension has since expired.
  • Before May 4, 2022, and the 180-day automatic extension has not yet expired.
  • Between May 4, 2022 and October 26, 2023, inclusive of these dates. 7

It is important to note here, however, that the automatic extension for those in H-4, E, or L-2 status, is only available if the applicant has an unexpired I-94, making the auto extension largely unavailable to those holding this status.

The increase in processing times for Employment Authorization Applications grew dramatically after the implementation of the 2017 Final Rule which eliminated the requirement that all Employment Authorization Applications be adjudicated within 90 days.[ii] In addition, the change in the issuance of EAD/AP combo cards was intended as a measure to reduce processing times by USCIS, but despite these efforts, the backlogs and processing times continued to increase. Processing times for Employment Authorization Applications grew to one year or more in some instances, leaving applicants subject to losing employment all together as employers cannot wait indefinitely for the extension of employment authorization.

CONCLUSION

The USCIS has been making significant progress on its three-prong mission to reduce backlogs. These initiatives provide many benefits for applicants including shorter adjudication times, expansion of Premium Processing, and greater flexibility with Employment Authorization Documents and automatic extensions. While these developments are encouraging, we advise that USCIS's recovery will continue to take a while.

Footnotes

1. US Citizenship and Immigration Services (USCIS) Newsroom. "USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders." (March 29, 2022): USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders | USCIS

2. Updated processing times can be found at USCIS: "Reducing Processing Backlogs": https://egov.uscis.gov/processing-times/reducing-processing-backlogs

3. USCIS Newsroom. "USCIS Releases New Data on Effective Reduction of Backlogs, Support for Humanitarian Missions, and Fiscal Responsibility." (December 7, 2022): USCIS Releases New Data on Effective Reduction of Backlogs, Support for Humanitarian Missions, and Fiscal Responsibility | USCIS

4. US Citizenship and Immigration Services, Fiscal Year 2022 Progress Report (December 2022):

USCIS Fiscal Year 2022 Progress Report (p. 13)

5. USCIS Newsroom. "USCIS Announces Final Phase of Premium Processing Expansion for EB-1 and EB-2 Form-I140 Petitions and Future Expansion for F-1 Students Seeking OPT and Certain Students and Exchange Visitors." (January 12, 2023): https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions

6. USCIS Form I-9 Related News. "Temporary Rule to Increase Employment Authorization and/or Employment Authorization Document Validity for Eligible Renewal Applicants." (May 4, 2022): https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/temporary-rule-to-increase-employment-authorization-andor-employment-authorization-document-validity. See also Federal Register. "Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewals Applicants" (May 4, 2022): 7 FR 26614: Federal Register :: Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants

7. USCIS: "Automatic Employment Authorization Document (EAD) Extension." (March 2, 2023): https://www.uscis.gov/eadautoextend

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.