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Rolling Back Trump USCIS Policies Can Cure Historic Immigration Delays

April 23, 2021, 8:01 AM

Millions of U.S. families and employers are impacted by U.S. Citizenship and Immigration Services (USCIS) processing. At present, USCIS processing is both delayed and in disarray.

Under the Trump administration, application processing times ballooned and backlogs lengthened either because USCIS was directed to create or its leadership decided to focus on creating policy barriers rather than adjudicating applications. To get things back on track, the Biden administration should roll back many of the policies and changes that were imposed by the former president.

Our immigration system should help American businesses prosper, but in recent years, it has been prevented from doing so effectively or efficiently. The guise of “enforcement” does not enable USCIS to disavow its congressionally mandated mission of customer service and timely and efficient adjudication of petitions. USCIS has used user filing fees, often close to or greater than $1,000, to discourage people from applying for benefits. This is bad for business.

USCIS itself has shared that its documentation processing delays are great and growing. Employers are having to terminate valued employees because of USCIS processing delays. The spouse of a U.S. citizen may have to wait three to five years for their green card. In some cases, USCIS is now directing, contrary to the regulations, the use of a USCIS receipt instead of the actual documents—but the agency is having trouble even issuing receipts.

Policies Were Designed to Delay Processing

Why are the wheels falling off the USCIS bus? In part because certain Trump policies were specifically designed to delay USCIS processing, including:

  • Requiring repeated biometrics “fingerprints” of children and spouses. Children and spouses legally in the U.S. are harmed by this practice—the theory is that Trump told USCIS to push the filings of these folks to the bottom of the list so that children were waiting 12 months before they were able to start school and there were 12-month employment authorization document (EAD) processing times, forcing spouses out of work.
  • Separating children and spouse adjudications from the adjudication of the principal.
  • Contrary to the regulations, wasting time trying to find ways to reject (and tearing up) applications. Properly filed is filed at the correct filing location, with correct filing fees, and a signature.
  • The USCIS tearing apart petitions, many of which are hundreds of pages, leads to USCIS losing attached evidence and related forms, wrongly returning properly filed filing-fee checks, and issuing denials because no supporting evidence is attached.
  • Requiring in-person interviews for a person previously exempt (today exacerbated by local USCIS office closures).
  • Rescinding deference to decisions of USCIS co-workers.
  • Adopting a policy to eradicate discretion through changes made in July 2020 to 1 USCIS-PM E.8 and 10 USCIS-PM A.5 of the USCIS Policy Manual, related to discretionary analysis and discretion, respectively. These changes impose a secondary adjudication process on dozens of applications, requiring adjudicators to multiply the amount of time spent determining eligibility, a move that grinds adjudications to an even slower pace and deny applicants relief they would otherwise be eligible for.

The Trump administration created the repeat biometric requirement after the administration could not quickly revoke the law that allowed certain L-2 and H-4 spouses to apply for temporary work authorization. Under the Trump-enacted policy, USCIS requires the USCIS biometric process to be completed before USCIS will finish a spouse’s or child’s extension applications, process EADs, etc.

Many applications, some pending since March 2019, are just sitting at USCIS because it has either not yet scheduled a fingerprint/biometric appointment or USCIS is in a holding pattern even after the fingerprints are provided. The result is more delay.

As intended, the repeat biometric policy result is that many spouses of authorized immigrants are no longer able to work. And if that were not enough, the spouses and teenagers of global executives and other professionals temporarily in the U.S. are now unable to obtain a driver’s license in most states and are therefore unable to drive to a doctor appointment, school, or grocery store, to take a baby for a wellness check-up, or to do many of the other common necessities of daily life.

The situation is now so outlandish that lawsuits, including a class action (Edakunni v. Mayorkas), have been filed against USCIS for the delays in processing visa extensions and work authorizations.

A few years ago, USCIS asked Congress for increased funding. In response, Congress required USCIS to first produce a plan for the funding. None was provided during the prior administration. As a result, there still is no plan, so there is no funding, and USCIS says it is no longer able to meet workloads, taking drastic workload measures because of a funding crisis. The current administration can take quick steps to fix this situation, which will benefit American businesses and the skilled immigrant labor many rely on.

The USCIS’s recent flexibility efforts are greatly appreciated. Regardless, the Biden administration’s rollback of these Trump policies, which were designed to deter, delay, and deny, will quickly help USCIS put the wheels back on the bus. Doing so will move us forward.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Eileen Scofield is counsel at Alston & Bird, focusing her practice on immigration law.