GCIsTortoise
Registered Users (C)
C. Untimely Processing and Systemic Problems with Employment-Based Green Card Applications
There are significant issues with USCIS’ timely processing of employment-based immigrant visa applications. Although there is a statutory annual allotment of 140,000 employment-based immigrant visas, the number of green card applications filed with USCIS in recent years dramatically exceeded the annual immigrant visa cap.23 These new filings add to the backlog because USCIS has not been able to adjudicate cases equal to the volume of available visas. This situation has resulted in an ever-increasing inventory of green card applications which further increases customer demand for interim benefits.24 In the future, backlog may be compounded by additional filings stemming from the Department of Labor’s new streamlined labor certification program, which in many cases is the first step before an employment-based green card application can be filed with USCIS. The Department of State (DOS) administers the 140,000 employment-based visa slots each year, allocating them as necessary to both USCIS for stateside processing and to U.S. embassies overseas. When it appears that demand in a particular category will exceed the supply of visas available for that year, DOS will establish cut-off dates for new filings in that category. In contrast, when there is a sufficient supply of visas in a particular category to meet demand, there is no limit on new filings and the category is considered “current.” However, DOS gauges demand based on the number of cases that are actually approved during the course of the fiscal year, not on the total number of cases that are pending. Thus, when USCIS processing of employment-based cases does not yield sufficient approvals to project that the annual cap will be met, DOS is unable to impose a cut-off date and new filings may continue. Employment-based visas that are not used in a fiscal year are shifted (or “recaptured”) the following fiscal year into the family-sponsored visa categories under a complex statutory formula. While this concept is intended to recapture unused visas, in reality, this process of recapturing visa numbers between the two categories, coupled with USCIS processing of employment-based visa applications below DOS projections, has resulted in the loss of thousands of employment-based visas under the formula over multiple years. Between FY 2001 and FY 2004, over 141,000 employment-based immigrant visa numbers were unused.25 This number effectively represents an entire year’s supply of employment-based visas. It is ironic that many thousands of employment-based immigrant visas simply evaporated while thousands of applications sat idle and generated demand for interim benefits. U.S. citizens and businesses had legitimate expectations of visa availability only to have them lost to delays and processing problems. To make up for the visa numbers lost in this process, Congress provided 180,000 additional employment-based visas under the American Competitiveness in the Twenty First Century Act of 2000.26 However, USCIS was not able to meet the increased level of production necessary to process and approve 180,000 additional applications so that many of these numbers remained unused until the current fiscal year. The Ombudsman commends USCIS for its recent efforts to reduce the pending employment-based green card applications by rapidly processing pending cases at the four service centers due in part to concerns raised by the Ombudsman regarding the loss of available visa numbers. In recent months, USCIS has increased the processing of applications for employment-based green cards as much as fourfold per month. This rapid processing has resulted in the establishment of visa cut-off dates for certain categories of employment-based immigrant applicants restricting certain country nationals from filing green card applications. However, because of the inability to effectively coordinate with DOS, USCIS has continued to accept thousands of new applications each month while continuing to maintain large numbers of pending applications at its offices which far exceed available visas. The Ombudsman has raised this issue with USCIS and DHS leadership, and efforts to address issues of efficiency and customer service are ongoing.
There are significant issues with USCIS’ timely processing of employment-based immigrant visa applications. Although there is a statutory annual allotment of 140,000 employment-based immigrant visas, the number of green card applications filed with USCIS in recent years dramatically exceeded the annual immigrant visa cap.23 These new filings add to the backlog because USCIS has not been able to adjudicate cases equal to the volume of available visas. This situation has resulted in an ever-increasing inventory of green card applications which further increases customer demand for interim benefits.24 In the future, backlog may be compounded by additional filings stemming from the Department of Labor’s new streamlined labor certification program, which in many cases is the first step before an employment-based green card application can be filed with USCIS. The Department of State (DOS) administers the 140,000 employment-based visa slots each year, allocating them as necessary to both USCIS for stateside processing and to U.S. embassies overseas. When it appears that demand in a particular category will exceed the supply of visas available for that year, DOS will establish cut-off dates for new filings in that category. In contrast, when there is a sufficient supply of visas in a particular category to meet demand, there is no limit on new filings and the category is considered “current.” However, DOS gauges demand based on the number of cases that are actually approved during the course of the fiscal year, not on the total number of cases that are pending. Thus, when USCIS processing of employment-based cases does not yield sufficient approvals to project that the annual cap will be met, DOS is unable to impose a cut-off date and new filings may continue. Employment-based visas that are not used in a fiscal year are shifted (or “recaptured”) the following fiscal year into the family-sponsored visa categories under a complex statutory formula. While this concept is intended to recapture unused visas, in reality, this process of recapturing visa numbers between the two categories, coupled with USCIS processing of employment-based visa applications below DOS projections, has resulted in the loss of thousands of employment-based visas under the formula over multiple years. Between FY 2001 and FY 2004, over 141,000 employment-based immigrant visa numbers were unused.25 This number effectively represents an entire year’s supply of employment-based visas. It is ironic that many thousands of employment-based immigrant visas simply evaporated while thousands of applications sat idle and generated demand for interim benefits. U.S. citizens and businesses had legitimate expectations of visa availability only to have them lost to delays and processing problems. To make up for the visa numbers lost in this process, Congress provided 180,000 additional employment-based visas under the American Competitiveness in the Twenty First Century Act of 2000.26 However, USCIS was not able to meet the increased level of production necessary to process and approve 180,000 additional applications so that many of these numbers remained unused until the current fiscal year. The Ombudsman commends USCIS for its recent efforts to reduce the pending employment-based green card applications by rapidly processing pending cases at the four service centers due in part to concerns raised by the Ombudsman regarding the loss of available visa numbers. In recent months, USCIS has increased the processing of applications for employment-based green cards as much as fourfold per month. This rapid processing has resulted in the establishment of visa cut-off dates for certain categories of employment-based immigrant applicants restricting certain country nationals from filing green card applications. However, because of the inability to effectively coordinate with DOS, USCIS has continued to accept thousands of new applications each month while continuing to maintain large numbers of pending applications at its offices which far exceed available visas. The Ombudsman has raised this issue with USCIS and DHS leadership, and efforts to address issues of efficiency and customer service are ongoing.