The coalition of immigration advocates that back the Biden administration generally falls into two categories: the humanitarian crowd, which supports high levels of refugee resettlement, lowering the standard for asylum, and amnesty for illegal aliens; and the business community, which supports high levels of cheap foreign workers. With the massive legislative package that would have rewarded both groups now on ice, cracks are starting to form in this coalition. Increasingly, the immigration attorneys and business community are voicing frustration that the Biden administration has largely ignored their asks in favor of the humanitarian crowd.
Sensing the fragility of this coalition, U.S. Citizenship and Immigration Services (USCIS) announced a series of steps that cater to the business community’s demands. In a press release, USCIS announced that the agency “will set new agency-wide backlog reduction goals, expand premium processing to additional form types, and work to improve timely access to employment authorization documents.” The agency claims these three new procedures are intended to “increase efficiency and reduce burdens to the overall legal immigration system.”
The actual intent behind these changes is not as altruistic as the agency is letting on. For starters, this description mirrors the political messaging of Executive Order (EO) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”. This EO purports to have the Department of Homeland Security (DHS) “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits”. As I have repeatedly criticized, this EO is really just cover for the Biden administration to disregard the eligibility criteria and reasonable processing times it dislikes, essentially creating an alternative set of immigration laws it operates under compared to what Congress has passed.
The backlog reduction plan is the most nefarious of the changes. As described by the agency, “[t]o reduce the agency’s pending caseload, USCIS is establishing new internal cycle time goals this month.” According to a chart published along with the announcement, every adjudication must be concluded within six months, with work permits due in three months. Translation: USCIS political leadership is imposing quotas on career adjudicators. With performance reviews dependent on meeting these quotas, adjudicators will feel the pressure to more quickly approve more immigration benefits. How do I reach this conclusion? Simple. It is far easier to approve an application or petition than to deny one. Denials require an adjudicator to write out an analysis explaining why the benefit was denied, while approvals do not require a similar analysis showing how the applicant or petitioner satisfied each of the eligibility criteria.
Some adjudications are more complex than others, for a variety of reasons. An adjudicator who starts his or her day with a particularly difficult case will feel rushed to catch up later in the day, increasing the likelihood of a vetting failure. “Internal cycle time goals” is really just code for the “get to yes” approach DHS Secretary Alejandro Mayorkas imposed on adjudicators when he was USCIS director during the Obama administration.
The expansion of premium processing will allow businesses to get their foreign workers faster in exchange for an additional fee. Previously, only petitioners filing a Form I-129, Petition for a Nonimmigrant Worker, and certain categories of the Form I-140, Immigrant Petition for Alien Workers, were eligible for this expedited adjudication service. Through a new law, USCIS is now authorized to make premium processing available for the Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; and additional categories of the Form I-140. This expansion obviously favors larger companies, and their immigration attorneys, over smaller businesses that may not have the means to pay the premium fee. While USCIS claims it will phase in the expansion, the agency must be careful because failure to render a decision in a premium processing case within the required timeframe results in a refund of the premium processing fee.
Lastly, USCIS revealed that it is working on a temporary final rule that has never appeared in the Unified Agenda to make work permits valid for a longer period of time than they facially appear. The specifics are unclear, but it seems that USCIS intends to allow aliens to keep working on their Employment Authorization Document (i.e., work permit) for more than 180 days after its expiration if the alien submitted a timely renewal request. This move, of questionable legal authority, merely punts the renewal adjudication down the road, delaying the next round of vetting and scrutiny.