The “Invisible Wall”: USCIS Processing Times Now at “Crisis Level” and Policy Changes Transform Agency from Service-Oriented to Enforcement-Driven

The American Immigration Lawyers Association (AILA) recently analyzed published USCIS data for fiscal years 2014 through 2018 and found a crisis-level of delays in the agency’s processing of applications and petitions for immigration benefits under the Trump Administration. While perhaps no real surprise to foreign nationals and their lawyers waiting for cases to be decided, this evidence-based report reveals an agency that is laying brick after brick in the Trump Administration’s “invisible wall,” a wall that is curbing legal immigration in the United States. Moreover, these delays are harming families, vulnerable populations, and U.S. businesses that depend on timely adjudications. Here are some of AILA’s findings:

• The overall average case-processing time surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.
• Processing times for four of the five highest volume case types (I-130, I-485, I-131, N-400) increased more than 25 percent from FY 2017 to FY 2018.
• USCIS processed 94 percent of its form types—from green cards for family members, to visas for human trafficking victims, to petitions for immigrant workers—more slowly in FY 2018 than in FY 2014.
• Case-processing times increased substantially in FY 2018 even as case volume appeared to markedly decrease.

Other agency data lay bare a USCIS “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017. This total amounts to more than a 100 percent increase over the span of one year, despite only a 4 percent rise in case receipts during that period.

In addition to processing delays, over the past two years USCIS (and other agencies) have introduced numerous changes that also have functioned as “bricks” in the Trump Administration’s growing “invisible wall.” In its April 2018 report, AILA highlighted dramatic changes in policy and practice by USCIS that increasingly have shifted its focus toward immigration enforcement. These new policies and practices slow and decrease legal immigration to and in the United States, fuel case backlogs, and contravene Congress’s intent that USCIS function as a service-oriented immigration benefits agency. Some examples are:

• USCIS rescinded longstanding guidance that directed USCIS personnel to give deference to prior determinations when adjudicating nonimmigrant employment-based extension petitions involving the same positions and the same employer;
• The Administration overhauled refugee case adjudications, bringing many of these applications to a standstill;
• USCIS implemented an in-person interview requirement for all employment-based green card applications and refugee/asylee relative petitions, without meaningful justification.

Moreover, in February 2018, USCIS stripped the phrase “nation of immigrants,” as well as the reference to applicants and petitioners as “customers” from the agency’s mission statement, further signaling its shift from a service-oriented to an enforcement-oriented agency. Other changes in 2018 also were implemented, including:

• A new “Notice to Appear” policy that threatens to profoundly escalate the number of denied applicants and petitioners placed into deportation proceedings;
• A new policy enhancing the likelihood that foreign students and exchange visitors could face long-term bans on re-entering the United States for committing even inadvertent and minor status violations;
• In concert with ICE, USCIS began setting “deportation “traps” where ICE arrests spouses of U.S. citizens who appear at a USCIS office for an interview in connection with their I-130 case;
• USCIS adjudicators were authorized to deny certain cases without first allowing applicants the opportunity to provide additional supporting evidence.

Congress intended USCIS to function as a service-oriented agency that efficiently processes immigration-related applications and petitions, enabling individuals to obtain work authorization, citizenship, humanitarian protection, and other vital benefits, and enabling U.S. employers to fill critical workforce gaps. Indeed, the agency charges high filing fees for cases and is not affected by government shutdowns. But, ballooning USCIS processing times coupled with other policy changes leave families—including families with U.S. citizen spouses and children—in financial distress, exposing vulnerable protection seekers to danger, and threatening the viability of American companies. Congress and the public need to hold USCIS accountable.