This is part 3 of a series of blog posts on the likely implications of a Biden Presidency on U.S. immigration policy. Read the first post here. Read the second post here. Read the fourth post here.
President-elect Joe Biden was sworn in as the nation’s 46th president today. In the days since his election, Biden has assembled a team of committed and experienced bureaucrats to revive a government that has become paralyzed by incoherent policies and impulsive politicking.
It is no secret that inclusive immigration is among Biden’s policy priorities. In my first post, I described the significance of this change in tone, and in my second post, I explained how the nomination of Alejandro Mayorkas to lead the Department of Homeland Security (DHS) is an important step in steering the agency back to its mission.
This week, we got another glimpse of just how fundamental immigration policy is to the Biden-Harris administration. On his first day in office, President Biden has proposed immigration legislation that provides a pathway for millions of undocumented immigrants to become U.S. citizens. It is also expected that he will make it a priority to overturn executive orders and regulations designed by the Trump administration to prevent American companies from hiring and retaining foreign-born employees.
Comprehensive immigration proposals are long overdue and will rightly grab all the headlines. Equally important, however, is the behind-the-scenes task of making the Department of Homeland Security (DHS) more efficient after four years of political activism – not by legislative consensus or lawmaking but rather through policies and memoranda – that has blunted the DHS’s ability to adjudicate cases and generate revenue to sustain itself.
To make up for lost ground, new leadership at DHS and its partner agency, the U.S. Department of State (DOS), must work to reinstate past practices and introduce new procedures that alleviate workload, expedite processing, and eliminate backlogs. Here are four recommendations that are the easiest to implement and will provide immediate and meaningful relief:
Reinstate Deference for Prior Approvals
Deference is a bedrock principle of the American legal system. It refers to the respect given to a prior decision on the premise that the adjudicator must have made a sound decision after carefully considering all of the relevant evidence. It also fosters efficiency by saving a reexamination of those same aspects that have previously been scrutinized and laid to rest.
In October 2017, a USCIS Policy Memorandum rescinded longstanding deference given to previously approved petitions when adjudicating subsequent extension petitions. Instead, this Policy Memorandum directed adjudicators to review all extension petitions de novo, as newly filed, and to review eligibility dating back to when the original petition was first filed.
This abrupt change in policy – in effect backdating new petition to the date of submission of the first petition for any extension filings – contributed to lengthy delays, backlogs, and even inconsistent denials of extensions for visa holders who had held valid nonimmigrant status for several years through successive petitions.
The rescission of the October 2017 Policy Memorandum would enable adjudicators to focus their limited resources on current eligibility rather than hunt for potential issues in archived files. It would significantly decrease case processing times and result in coherent decisions consistent with prior approvals.
Eliminate Mandatory Interviews for Employment-Based Permanent Residence
Employment-based permanent residence incorporates vetting at various stages of the process, including: (1) an exhaustive test of the labor market for qualified U.S. workers; (2) thorough examination of the employer’s ability to pay the sponsored worker; (3) documented proof of the sponsored worker’s education and experience to adequately perform the duties of the proposed position; (4) detailed criminal background check; and (5) final reconfirmation of the employer’s job offer to the sponsored worker before the approval of the permanent residence application.
Historically, after these checks were successfully completed, the USCIS’s Nebraska Service Center administratively approved permanent residence applications and mailed ‘green cards’ to sponsored workers’ home addresses. In another policy change instituted by the Trump administration in October 2017, the USCIS began requiring mandatory in-person interviews for all employment-based permanent residence cases at local USCIS field offices.
The value of in-person interviews in marriage-based permanent residence cases is understandable. It arguably provides adjudicators the opportunity to gauge truthfulness in responses and assess whether relationships are bona fide. Given the extensive vetting that already occurs at each level of the employment-based permanent residence process, however, for the overwhelming majority of employment-based cases, mandatory in-person interviews just add extra work and significant delays in the issuance of green cards.
The mandatory interview requirement in the employment context has overwhelmed USCIS field offices, both in terms of volume and subject matter. Previously, field office adjudicators focused on family-based matters because employment-based matters were adjudicated at the Nebraska Service Center. The advent of employment-based interviews required field officers to grasp the nuances of business immigration, request applicants’ files from archives, review relevant files, schedule applicant interviews, and only then make decisions on those cases. This deluge of extra work was in addition to their existing family immigration case loads. The effect of this policy change was that the processing times for both family and business immigration cases ballooned.
By reverting to the historical division of responsibility for employment-based cases at Service Centers and family-based cases at field offices, the Biden-Harris administration can efficiently decrease the backlog. Any decision to require in-person interviews for employment-based cases may be made by Service Center officers on a case-by-case basis for cases that require additional scrutiny.
Eliminate the Need to Obtain ADIT Stamps at Field Offices
After four years of inefficiencies brought on by intolerant policies and ineffective leadership, DHS’s report card is embarrassing. The agency’s record backlog and insolvency call for comprehensive bipartisan reform that will take time and require compromise. Until then, the Biden-Harris administration can take concrete steps to reduce the backlog by eliminating a few redundancies.
One step in that direction would be to undo the need for conditional and permanent residents to obtain Alien Documentation Identification and Telecommunication (ADIT) stamps at USCIS field offices. ADIT stamps, which are also referred to in agency parlance as “I-551 stamps,” serve as temporary proof of conditional or permanent resident status in the U.S. They become necessary when ‘green cards’ expire, and foreign nationals apply for renewals of their status.
Conditional residents are granted permanent residence contingent on their satisfactory completion of certain requirements. Typically, family-based conditional residents need to show proof of their good faith marriage to U.S. citizens in order for those conditions to be removed. Similarly, investment-based conditional residents have to demonstrate that their investment(s) created sufficient jobs for U.S. workers before they can get permanent green cards.
Historically, when green card holders applied to renew their conditional or permanent resident status, the USCIS issued receipt notices or affixed stickers that automatically extended the underlying status for a period of one year, giving the agency the time needed to approve or deny those cases. In uncommon circumstances in which the USCIS had not approved or denied pending cases within that time, green card holders could obtain ADIT stamps at local field offices as proof of their status for employment verification and/or for reentry into the U.S. following international travel.
With extended wait times resulting from backlogs and misallocation of resources, the receipt notices and stickers that extend applicants’ status for 12 or even 18 months have proven insufficient. Applicants have had to routinely schedule appointments at USCIS field offices to obtain these ADIT stamps as proof of their status while their cases have been in the queue for more than 18 months. This inefficiency has been exacerbated by and exposed during the pandemic, as many USCIS field offices remained closed to the public from March through August and applicants saw their employment authorizations expire.
This lapse in status, and the resulting scramble for appointments for ADIT stamps at USCIS field offices, is avoidable through an easy fix. The incoming administration can begin to issue receipt notices specifying that the mere filing of the extensions automatically extend the underlying conditional or permanent resident status until the USCIS makes decisions on such cases. The receipt notices, together with printouts from the USCIS’s case status webpage showing the cases as pending, would serve as proof of employment and for reentry into the U.S.
This simple change in wording on the receipt notices would provide massive relief to: (1) green card holders by providing them with proof of their lawful status so long as their extensions remain pending; (2) employers for I-9 employment verification purposes by ensuring that such employees remain eligible for employment; and (3) USCIS field offices from being inundated with requests for ADIT appointments.
Reinstate Stateside Visa Revalidation
As a partner agency to DHS, DOS is responsible for assessing eligibility for particular visa categories for foreign nationals outside the U.S. Strictly speaking, a “visa” refers only to the visa foil that is affixed in an individual’s passport by a consular post, which is part of the DOS. A visa foil is a permission to enter the U.S. within a given window of time.
Once the individual is lawfully admitted into the U.S. within that window upon showing the visa valid foil and supporting documents to the U.S. Customs and Border Protection (CBP) officer at a port-of-entry or a border crossing, he or she holds “status” in the U.S. Status can be extended in the U.S. through applications and petitions approved by the USCIS even though the underlying visa foil may have expired after entry.
In order to be readmitted into the U.S. following international travel, the individual must reapply for the visa foil at a consular post outside the U.S. Requiring visa applicants to leave the U.S. to reapply for visa foils at consular posts is cumbersome in the best of times and outright cruel in a world struggling to recover from a raging pandemic.
Prior to October 2004, the DOS permitted eligible foreign nationals to request renewals of their visa foils without having to depart the U.S. In a process known as visa revalidation, applicants could mail in their passports and proof that they had continued to maintain their nonimmigrant status to a DOS office in the U.S. and obtain new visa foils. This process centralized and streamlined the issuance of visa foils for individuals who habitually resided and worked in the U.S. It also significantly lightened the burden on consular posts outside the U.S. from having to adjudicate visa applications for individuals who had typically traveled outside the U.S. simply to obtain new visa foils.
The Biden-Harris administration should reestablish stateside visa revalidation. It is a process that worked and worked well. Its discontinuation in 2004 was due to the fact that the DOS found it “infeasible” to collect biometric identifiers for visa applicants in the U.S. In the 17 years since stateside visa revalidations were discontinued, the technology and the infrastructure to facilitate the capture of biometrics has evolved drastically. The ease with which USCIS and DOS and their partner agencies can (and do) share digital data makes it even more manageable now to reintroduce stateside visa revalidation both securely and efficiently.
Any investments that the DOS would need to make in the U.S. for visa revalidations can be offset by the costs it would save at consular posts worldwide. The DOS already has a successful track record of creating a similar office – the National Visa Center (NVC) in Portsmouth, New Hampshire – for immigrant visa sponsors and applicants to channel the bulk of their filings through one office in the U.S. instead of at consular posts worldwide. This initiative not only makes fiscal sense but is also an essential part of a robust and consistent system that can function during pandemics and other disasters.
In my next blog post, I will delve into the specific steps that the Biden-Harris administration should take in order to ensure consistency in DHS adjudications, with the twin goals of fostering predictability and minimizing unwelcome surprises.