USCIS Furloughing 13,000 Employees: 3 Impacts for U.S. Companies and their H1B and Other Employee
July 22, 2020 Update: In contrast to the dire budget situation that was apparently faced by USCIS earlier in the year, it has now come to light that the USCIS in fact projects ending this year with a budget surplus.
Nevertheless, the USCIS is still asking for a bailout and it appears they still plan to furlough 13,000 workers come August 3. Senators are asking DHS and USCIS to take immediate action to save USCIS employees from such furloughs.
So what are the practical implications of the expected USCIS furlough of two-thirds of its entire workforce, over 13,000 employees? The implications are primarily total unpredictability in terms of when U.S. companies can obtain immigration approvals for prospective hires or for existing international employees in H1B, L1, and other immigration statuses. In a time where the business community is already struggling to find solid ground under COVID-19, Trump’s Immigration Executive Orders, and the current economic climate, this is just another burden to carry with real-world implications.
Disclaimer: This post is not legal advice and should not substitute for obtaining legal advice. Note that laws and interpretation of immigration laws change over time.
How Did We Get Here? Why is USCIS planning to Furlough 13,000 employees?
In short, it is a lack of financial planning and austerity. The USCIS, on June 25, provided a statement regarding the financial turmoil it is experiencing. The USCIS provides in part that:
The majority of USCIS operations rely on fees paid by applicants and petitioners, not appropriated or taxpayer funds. Due to the COVID-19 pandemic, USCIS has seen a 50% drop in receipts and incoming fees starting in March and estimates that application and petition receipts will stay well below plan through the end of Fiscal Year 2020. In the past few months, USCIS has taken action to avert a fiscal crisis, including limiting spending to salary and mission-critical activities.
The reality is that although COVID-19 has impacted everyone, it is also the case that the USCIS must have been in financial-straits well before COVID-19 not to be able to bridge this gap.
It is worth noting that the Trump Administration has done as much as it can within its power, and arguably even beyond its power, to restrict immigration and thereby immigration filings and revenue for the USCIS. In one of the Trump administration’s latest moves, arguably outside of its executive powers, it released a June 22, 2020, Immigration Executive Order impacting the entry of H, L, and J visa holders. This has been done under the guise of COVID-19 but it is worth noting that the unemployment rate in technology jobs, which make up about two-thirds of all H1B roles, is around 4%.
Also, how does limiting the entry of dependent H4, L2, and J spouses and children help the availability of jobs to U.S. Citizens and others in the workforce who do not need immigration-related work authorization? It is true that a small group of H-4 holders can obtain work authorization but again the numbers we are looking at here are minuscule compared to the joblessness in the U.S. These are but a few questions that will certainly be litigated in the near future.
Whether the Trump administration is actually delighting in the idea of USCIS being gutted or whether they truly wish to do whatever is in their power to keep the lights on this furlough, even if just for the initial 30 days as suggested, this will have an impact on U.S. business and international visa holder employees. Here are three impacts to be considered and discussed with immigration counsel to prepare for and strategize should there be no Congressional bail-out and should the furlough extend beyond 30 days.
USCIS Furlough Impact #1: H1B Processing as well as Other Change of Status, Change of Employer, and Extension of Status Applications Will Slow
It is hard to imagine that the USCIS will be able to stick anywhere near its current processing times for typical H1B or other status extensions, change of employer, or change of status applications. This could place companies and employees in a difficult position if cases are not filed as soon as possible.
For extension applications, cases can be filed extending H1B or other status types 6 months before an upcoming expiration. Luckily there is some relief where timely extension applications are filed as most non-immigrant visa types, including the H1B, L1, O1, TN, and others, are granted an automatic 240-day employment authorization extension as a result of a timely filing. That said, it is conceivable that even 240 days might not be sufficient to get cases adjudicated.
Looking at situations where companies wish to sponsor an employee and onboard them from another employer, it is important to note that the H1B visa provides some relief by allowing for portability. This means that an employer can file an H1B change of employer application for someone already in H1B status and upon receipt by the USCIS that H1B employee could begin employment. This is great but note that under the Trump administration case processing has been far more unpredictable with a massive rise in additional requests by the USCIS and increased denial rates. Therefore, it is often the case that H1B employees prefer to wait until an H1B change of employer application is approved before starting with the new petitioning company.
It is also important to note that only the H1B allows for this portability. So if a candidate holds an O1 visa, a TN visa, an E3 visa, or any other work-authorized status the individual cannot begin work until the case is approved.
Lastly, when considering a change of status application, for example, an F1 student who is completing OPT or STEM OPT could file for a change of status to another visa types, whether an O1 visa or other option, there is no portability allowed and these change of status applications would likely be very slow in processing. This would potentially leave the applicant without work authorization and a U.S. company without a critical employee.
USCIS Furlough Impact #2: Premium Processing Will Likely not be Sustainable
On top of impact 1 discussed above, it is very unlikely that the USCIS will be able to continue offering Premium Processing, which allows for expedited case processing within 15 days. This is often very important for companies sponsoring a candidate to change employers or filing a change of immigration status application for an existing employee.
Without Premium Processing, cases already take months. If USCIS is furloughing 13,000 employees, it is hard to see how these cases will be processed and approved within a reasonable amount of time. This of course causes tremendous anxiety for all parties and it takes away all predictability in the process that is offered to employers via Premium Processing.
It is also worth noting that Premium Processing costs additional money in terms of filing fees, something which the USCIS could certainly have used in the several months each year that they have stopped accepting Premium Processing applications.
USCIS Furlough Impact #3: What Will Happen to Adjudication Standards without Enough Employees to Adjudicate Immigration Filings?
Adjudication standards at USCIS, since the Trump administration entered the White House, has very clearly become much more difficult. There are numerous statistics proving this out from dramatic increases in requests for evidence from the USCIS, to a large increase in denial rates, all occurring without any official regulatory changes in adjudication standards or eligibility requirements.
All of the added focus and burden on USCIS to make immigration processing as painful and difficult as possible has led to an incredible amount of wasted time on every case filing. It is important to note that the USCIS does not get more in fees when a case is challenged and the timeline is drawn out. Another example of a massive waste of resources by USCIS has come as a result of requiring immigration interviews for employment-based green card applications on every filing. This was never required and was handled only where deemed truly necessary. But under the Trump administration, an incredible amount of time and resources have been wasted here.
So what will be interesting to see, and possibly alarming, is how a greatly reduced workforce will approach adjudication of the cases they can actually get to. Will the agency be led to double-down on this effort or will there be a required relaxation to try and somehow keep adjudications moving before making the entire system completely unworkable? Also, will the USCIS turn to greatly increasing filing fees?
We will have to see but what is clear is that companies need to work with immigration counsel to address these issues and possible ramifications from immigration policy and workforce planning standpoint.
Contact ImmiPartner to Assess Your Company Immigration Needs and How to Best Navigate the Current Climate
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