The Office of the Citizenship and Immigration Services Ombudsman recently held a public teleconference to discuss USCIS processing delay issues with respect to three specific applications: Applications for Employment Authorization (EADs), Applications for Change of Status (COS), and Applications for Extension of H-1B status (H-1B EOS). The teleconference followed the Ombudsman’s 2016 Annual Report to Congress, which documented increasing delays in nearly all USCIS processing. Following is summary of the key issues and outcomes with respect to each of the identified applications:
H-1B Extensions:
Significant processing delays are occurring with respect to H-1B extension applications that are submitted under regular processing. While the regulation provides for an automatic extension of work authorization up to 240 days if a timely extension of status is filed by the same employer, the adjudication of H-1B extensions is now approaching – and often exceeding – 240 days. This is causing substantial challenges for both employers and employees, not only breaking the continuity of employment, but also inhibiting the ability of employees to travel abroad and company planning.
Employers may upgrade an H-1B extension application to the premium processing service, which ensures an adjudication within 15 calendar days for an additional filing fee of $1,225. However, not all employers (non-profits, for example) can afford the upgrade fee.
In an effort to respond to delays in the regular adjudication of H-1B extensions, USCIS now directs all employers seeking H-1B extensions for the same beneficiary to file the petition with the Nebraska Service Center (NSC).
Change of Status:
The processing of COS applications is currently taking several months. To attempt to alleviate these delays, USCIS temporarily transferred COS cases from the Vermont Service Center (VSC) to the California Service Center (CSC) for processing earlier this year. As of September 1, 2016, USCIS now requires that all COS applications be filed at the NSC.
Those most affected appear to be applicants seeking to change from B-2 visitor status to F-1 student status, some of whom have needed to depart the U.S. and Consular process for F-1 visas abroad in order to commence school on time. B-2 visitors should carefully explore the impact of processing delays with their foreign student advisors or with an immigration professional to understand the risks.
EADs:
USCIS recently proposed the elimination of the regulation requiring a 90-day processing time. To ease concern that this would lengthen processing times and lead to gaps in employment authorization, it is proposed that the regulations provide for an automatic 180-day work authorization for most EAD extension applications that are timely filed.
In the meantime, it was reported on the teleconference that Optional Practical Training (OPT) EAD filings appear to be moving fairly well compared to 2015, when many adjudications exceeded the USCIS standard of 90 days. Nonetheless, it was recommended that EAD extension applicants submit their applications as close as possible 120 days in advance of their current expiration dates.
We are continuing to monitor processing issues for our clients and recommending alternative solutions to overcome or minimize business and personal impacts.