The “invisible immigration wall” erected by the Trump administration is very real and has a lasting effect on the system. Indeed, the newly appointed Minister of Homeland Security Alejandro Mayorkas recently stated, “The previous government has completely dismantled our nation’s immigration system.” Reconstruction brings enormous challenges. Almost every issue needs to be prioritized – from lifting travel bans to lifting harmful orders from the executive to dealing with the humanitarian situation at the border.
One pressing issue is the unprecedented backlog of cases waiting to be processed by the US Citizenship and Immigration Services (USCIS). The impact of the pandemic, coupled with a series of changes made by the Trump administration under the guise of extreme scrutiny, has created a huge bottleneck in the system. In my opinion, two measures can immediately reduce it – eliminate some mandatory interviews and eliminate biometric requirements for certain visa applicants.
Eliminate mandatory face-to-face interviews for specific cases
When Trump took office, there was not only a rapid succession of executive orders such as the “Muslim” ban, “Buy American Hire American” and others, but also policy and procedural changes that had an immediate long-term impact on handling cases .
Such a guideline was implemented in August 2017. The Trump administration has requested that anyone applying for legal permanent residence (a green card) and submitting Form I-485 must attend the interviews in person. In the past, those who applied for green cards as a result of employer sponsorship, such as H-1B visa holders, were not required to attend such interviews because they felt the various background checks provided by the FBI, Interpol, and others were sufficient . Now everything has changed.
USCIS data shows that there were 118,719 labor cases pending between July 1 and September 30, 2020. In addition, a total of 613,247 green card applications were pending and awaiting an interview. Over the past six months, USCIS has confirmed a significant delay in opening envelopes and handling new cases on its system. Therefore, the number of pending cases is likely to be much higher. Your guess is as good as mine when this residue will clear up.
Another change that required face-to-face interviews came in November 2018 when the government introduced a new policy memo tightening controls on legal permanent residents who were on conditional green cards in the US. Suddenly, people whose green cards were based on their marriages to US citizens had to appear in person to prove their continued bona fide marriages in order for the terms to be lifted.
Previously, applicants could do this on paper and in most cases these interviews were omitted. Only those whose paperwork raises further questions about immigration are required to appear in person. Although USCIS went back and forth on this policy for a while, it basically resulted in almost all applicants being subjected to face-to-face interviews. Similar to employment-related visas, the backlog grew immediately.
Eliminate biometric requirements
Before Trump, certain immigrant applicants did not need fingerprints or biometrics, such as tourists renewing their visas or the dependent spouses of work visa holders, such as those with H-1B. As part of the “Extreme Verification” policy mentioned above, the administration required biometric data for those who use Form I-539 to convert nonimmigrant status or extend their stay in the United States. An immediate residue resulted.
This backlog was exacerbated by two other problems. First, an immediate cessation of international travel in March 2020 due to the pandemic resulted in larger numbers of travelers changing or extending their status to stay in the US. For example, tourists with B-2 visas unable to leave due to canceled flights or countries closing borders could submit an I-539 form to apply for an extension of their stay. Or the relatives of work visa holders who were able to travel to a U.S. embassy abroad to renew their visas in the past now had to submit the same form. (It should be noted that family members could always file Form I-539, but many chose to go to the embassy.) Suddenly, everyone had to submit biometric information.
Second, as in the rest of the country, USCIS offices were closed and biometric appointments could not be performed. As a result, an already long wait became unprecedentedly longer. A year later, many people are still waiting either for appointments or for their cases to be processed.
The biometric requirements created an additional problem for spouses with work visas. While those who can get a work visa like H-1B or L-1 don’t need a fingerprint, suddenly their spouses did. As a result, the spouse’s case could no longer be quickly followed up alongside the case of the primary visa holder who does not require a fingerprint. This delay can have a ripple effect on a couple’s life. The late work permit prevents the spouse from working and contributing to the household. This not only affects the family, but also the applicant’s US employer, who is now faced with an unpredictable job.
Benefits of Reversing Policies
The backlog can be fixed somewhat by undoing both changes immediately and reverting to pre-Trump guidelines, which the Biden administration can easily do.
Before the Trump administration, routine cases like renewing visitor status or processing Form I-485, which is used to issue green cards to job applicants, took six to nine months. In the past four years, processing times have increased to almost two years. And during the pandemic, that timetable is now uncertain.
Eliminating the biometric requirements has a dramatic impact on reducing the residue they created. It will help the officers get their case numbers down to a reasonable level. It will help applicants get on with what to expect – be it while traveling, at school, or at work. And in the event of a delay in the work permit, the American employer can bring the employee back to work.
The backlog of people waiting for face-to-face interviews includes family-related applicants, naturalization applicants, and asylum seekers – basically everyone. USCIS has slowly resumed processing these cases, but at the same time needs to consider the health of its employees and social distancing requirements. Eliminating this requirement would drastically reduce the time officials spend in front of people. It would also free up her time to focus on cases that really should have face-to-face interviews. And it would be better for business to get backward people on their way to safe and stable taxable residents.
It is clear that eliminating biometrics and interview requirements can in some cases be one of the easier and quicker policy changes that result in immediate benefit for all.
Tahmina Watson is the founding lawyer of Watson Immigration Act in Seattle, where she practices US immigration law with a focus on corporate immigration. She has blogged about immigration law since 2008 and has written numerous articles in numerous publications. She is the author of Legal Heroes in the Trump Era: Get Inspired. Extend your impact. Change the world and The Startup Visa: Keys to Job Growth and Economic Prosperity in America. She is also the founder of the Washington Immigrant Defense Network (EXPAND), which finances and facilitates legal representation in the immigration courtroom and is a co-founder of Airport attorneyswho provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the moderator of the podcast Tahmina talks about immigration. She was recently named one of the 2020 Women of Influence by the Puget Sound Business Journal. You can reach them by email at [email protected] or follow her on Twitter at @tahminawatson.