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Immigrants seeking employment-based green cards from within the U.S. will soon have to appear for an in-person interview.
Immigration attorneys are concerned the new requirement will result in significant delays with little benefit. U.S. Citizenship and Immigration Services will begin to phase in the interview requirement Oct. 1.
“This new policy represents a sea change in the employment-based immigration space,” Chad Blocker of Fragomen, Del Rey, Bernsen & Loewy in Los Angeles told Bloomberg BNA Sept. 27. “Interviews technically have always been required,” but the USCIS historically has waived that requirement for most employment-based green card applicants, he said.
“I’m a little bit mystified” as to why the employment-based green card is “the first place they went for interviews,” former USCIS Director Leon Rodriguez told Bloomberg BNA Sept. 26. This group of immigrants has “never been a particularly high-risk segment of the immigration world,” he said.
“This change reflects the Administration’s commitment to upholding and strengthening the integrity of our nation’s immigration system,” Acting USCIS Director James W. McCament said in a statement announcing the new requirement. “USCIS and our federal partners are working collaboratively to develop more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.”
Rodriguez, who practices with Seyfarth Shaw in Washington, D.C., said he understands the desire to keep the nation safe. But “I don’t see” how requiring all employment-based adjustment applicants will improve security, he said.
When Rodriguez headed the USCIS during the Obama administration, interviews in this area only were conducted on an “as-needed basis” if there was some concern about the applicant, he said.
But “there aren’t that many bad guys in the immigrant population,” Rodriguez said. And for those bad guys who do slip through the cracks, “there’s no pattern” as to where they’re from or what kind of visa they use, he said.
“Everyone was hung up” on the security of K-1 fiancé visa after it was discovered that San Bernardino shooter Tashfeen Malik used that visa to enter the U.S., Rodriguez said. “In that case, the “bad guy” came on a K-1 visa, he said, but the next one could come on a completely different visa. Instead of looking backward, “we need to be fighting tomorrow’s bad guy,” he said.
Adjustment of status applications—applications for a green card from within the U.S.—already have been vetted, by virtue of the fact that the applicants are already in the U.S. on a visa, American Immigration Lawyers Association President-Elect Anastasia Tonello said.
These immigrants already have been vetted by the USCIS, State Department, and Customs and Border Protection and “are already living and likely working in the U.S., having passed employment-based background checks, established a U.S. residence, likely applied for and been issued a U.S. driver’s license, been issued a Social Security number, and filed federal, state, and local taxes,” she said in a blog post.
It’s a “very pristine group of people” who can adjust their status, Tonello told Bloomberg BNA Sept. 26. “We’re talking about the people who we don’t want to waste time on,” she said.
“I just don’t know how they’re going to be able to schedule all these interviews” without “significantly delaying adjudication times,” said Tonello, who practices with Laura Devine Attorneys in New York.
The USCIS is adding 200,000 interviews to existing workloads at its field offices, agency spokeswoman Arwen Fitzgerald told Bloomberg BNA Sept. 27. The agency will “augment staff as necessary and will utilize overtime to process additional cases,” she said.
Still, the agency is anticipating “longer processing times in certain locations” at least initially, Fitzgerald said. “USCIS strives to adjudicate all applications and petitions in a timely manner and is working to minimize the impact on processing times by expanding available resources and improving how we adjudicate cases,” she said.
The USCIS is requiring that everyone undergo an interview—including the dependents of the workers—unless they’re eligible for a waiver, as in the case of young children, Fitzgerald said. But the agency will try and interview family members together “to the extent possible,” she said.
“We are anticipating” that green card application processing times “are going to grow tremendously,” said Blocker of Fragomen, Del Rey, Bernsen & Loewy.
Processing times currently are around eight to 12 months, and “many folks are thinking that it could more than double,” he said. Add that to whatever time applicants have already waited for a green card to become available, which can be 10 years or more, Blocker said.
That means green card applicants will continue to have limited job portability for an even longer amount of time, he said.
“It’ll be a resources challenge,” Tonello said.
“They didn’t plan for it financially” because the fee applicants pay to adjudicate their adjustment applications doesn’t account for interviews, Rodriguez said. The USCIS mostly is funded by user fees rather than appropriations.
The current two-year fee cycle began in December, and so increasing fees to aid in additional hiring isn’t going to happen for a while, Rodriguez said.
The agency could increase fees sooner, but it requires going through the regulatory process, which can take a long time, he said. And even after additional fees are obtained, USCIS officers have to be hired and trained, a process that can take “many months,” he said.
It’s also possible that the interviews could lead to increased denials of adjustment applications, Tonello said. It depends on what training and guidance USCIS officers receive, she said.
“USCIS has completed four virtual/webinar training sessions on employment-based adjustment of status” and has recorded that training for future use, Fitzgerald said. That training will be administered at the end of September, and additional training is planned “as this workload transitions,” she said.
One of the things an interview could uncover is new information since the application was filed, Tonello said. “There will be new information,” considering the time it takes to adjudicate those petitions, she said. And there’s also the time in between the interview and the point when the USCIS approved the employer’s petition to sponsor the worker, which can be much longer.
That raises concern as to whether the interviewing officers will readjudicate already-approved green card petitions, Tonello said.
We don’t know “how much the applicant is going to be scrutinized” during the interview, Blocker said. One particular concern is how intently the agency will be looking at the immigrant’s job changes since the employer’s petition was approved, he said.
The law allows immigrant workers who are waiting for their green cards to change jobs in only limited circumstances. So if the USCIS officer conducting the interview believes that the immigrant’s new job is too different from the one he or she had when the employer’s petition was approved, that could be “detrimental and fatal to the green card application,” Blocker said.
There’s also the question of “how much subjectivity they’re going to bring to this process,” he said. The USCIS has provided “almost no detail” as to how these interviews will play out, Blocker said.
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