The global pandemic has had a significant adverse impact on United States Citizenship & Immigration Services (“USCIS”) operations. We previously reported on the impact of COVID-related office closures on U.S. consular operations; however, USCIS was subject to similar office closures. Specifically, USCIS Application Support Centers (ASCs) and Field Offices were closed from March until June 4 and then partially reopened. ASCs, which continue to operate on a very limited basis, are responsible for collecting biometrics (i.e., fingerprints and photographs) from foreign nationals seeking certain immigration benefits, and Field Offices are responsible for conducting interviews on certain benefits applications. These office closures have resulted in ongoing delays with related benefits applications.
Employment Authorization Document (EAD) Delays
USCIS delays have seriously impacted foreign nationals and their U.S. employers. This is perhaps most notable in the case of EAD delays. EAD applications are now taking 6 months or longer in many cases, and can only be filed up to 6 months in advance of a prior EAD expiration date. It is therefore sometimes impossible to avoid a lapse in employment authorization. Some EAD categories authorize automatic extension of employment authorization for up to 180 days while the application is pending, but others do not. For those categories that do not receive automatic extensions, an interruption in employment authorization is all but inevitable given the current delays.
When an existing employee’s EAD expires, the Immigration Reform and Control Act of 1986 (“IRCA”) makes it unlawful for an employer to hire or continue to employ that individual. This generally requires the employer to fully terminate and rehire the employee when the new EAD is issued. Some employers take the position that they do not need to fully terminate the individual and instead place such an employee on an unpaid leave of absence. This practice potentially subjects the employer to penalties in the event of an I-9 audit. According to IRCA, an “employee” is “an individual who provides services or labor for an employer for wages or other remuneration.” Arguably, an employee who is on an unpaid leave of absence is not an “employee” under this definition as she is neither providing services nor being paid. Employers who choose to go this route should carefully ensure that the employee is fully disengaged from the work place during such a leave, with no access to work emails or voicemails, and should ensure that the employee understands that he/ she may not perform any work during this period. However, the more conservative approach, in the absence of direct guidance from the Department of Homeland Security on this issue, is to execute a full termination and remove all doubt as to whether the individual still meets the definition of an “employee” during this period.
Delays with Adjustment of Status and Naturalization Interviews
Because of USCIS office closures, applications for benefits requiring an in-person interview have also been delayed. This includes primarily I-485 applications for adjustment of status and N-400 applications for naturalization. There is one positive impact of these delays, and that is that many employment-based I-485 interviews have been waived in order to reduce the backlog. Many of our clients have simply received their green cards in the mail without ever attending an interview. In addition, there is a benefit to some naturalization applicants; while their interviews cannot be waived, some USCIS offices are administering the citizenship oath right at the USCIS office following a successful interview instead of having to wait a few weeks for a separate oath ceremony.
Delays with USCIS Receipt Notices
In addition to delays with adjudication of benefits applications, USCIS lockboxes that receipt in new filings have experienced severe delays in 2020. This problem escalated in October and November 2020, due to the large number of filings generated by the rapid advancement of the October 2020 Visa Bulletin. The USCIS Office of Public Affairs recently released a Stakeholder Message stating that due to the significant increase in the volume of filings, along with COVID-related staffing restrictions, USCIS had experienced a “significant delay” in issuing receipt notices and that they will normally issue receipts within 30 days. However, our experience has been that some receipts are taking 60 days or even longer, while others arrive quickly. There seems to be no pattern to which cases are receipted in quickly and which are not.
If you would like to discuss how these developments impact you, your business, or your employees, please contact any member of the Harris Beach immigration team.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.