Immigration Agencies: 2022 Yearend Review and What to Expect in 2023

Much like any other area of business, immigration functions as a delicate ecosystem with multiple agencies touching pieces of the process. When one agency experiences a change, it impacts many other areas of immigration. After three full years of the COVID-19 pandemic and resource constraints resulting from the previous presidential administration, the Department of State (DOS), U.S. Citizenship & Immigration Services (USCIS), and Department of Labor (DOL) continue to confront months-long backlogs and delays. These delays impact the issuance of nonimmigrant and immigrant benefits, as well as supplemental benefits, including Social Security Numbers and driver’s licenses.

The following provides an overview of the initiatives adopted by DOS, USCIS, DOL, and the U.S. Customs & Border Protection (CBP) to overcome the challenges resulting from the last three years and what to expect from the agencies in 2023.

Department of State

After years of limited consular services and consulate closures, visa appointments remain difficult to obtain worldwide. Typically visa applicants will find it easiest to book appointments at a consulate in the country where they hold a passport or have some other permanent or work status.

Key Barrier in 2022 and Beyond: Visa Appointment Backlogs

The backlog for visa appointments is global in nature, however some nationals face longer waits than others. The wait times for visa processing can be found here. These numbers are self-reported by each consulate and they may not reflect the realities of difficult appointment booking faced by individual applicants.

Additional appointment slots are opened by consulates on an ongoing basis. For instance, consulates in Delhi, Mumbai, and Chennai recently released additional appointments for the month of December to accommodate holiday travel. Some consulates also increased the number of allowable interviews per day, from 120 interviews to 150 interviews per officer.

Requests for expedited appointments can be submitted for qualifying reasons. These requests are only permitted after an initial appointment has been booked. Once that appointment has been made, an individual can submit a request as directed by the relevant consulate to document the urgent business, humanitarian, or medical reasons needed for travel to the United States. Expedited appointments are not available for urgent travel abroad and must be for travel to the U.S.

What to Watch for in 2023: Staffing Increase to Reduce Visa Wait Times

The Department of State continues to increase its staffing of visa officers at consulates, however the hiring process is lengthy and is then followed by 3-12 months of training before officers arrive at their posts. Once they arrive, they participate in onsite training and learn the local considerations for visa applicants.

It is projected that consulates will be fully staffed by the end of 2023, but it will likely be until the middle of 2024 before they are adjudicating a full slate of 120 interviews per day per officer. New officers are more likely to make errors because they typically do not have significant experience with the visa process or immigration law in general. Visa applicants should closely review any decisions made by consular officers, including visa issuances, in order to immediately request a correction of any errors.

U.S. Citizenship & Immigration Services

Overall, USCIS has taken actionable steps to deliver on its commitment to transparency, efficiency, and processing timelines. Based on their published goals and the improvements already being realized, we can expect USCIS to continue to deliver on its promises in FY 2023.

Key Improvement in 2022: Reduction of Requests for Evidence

One of the most important improvements at USCIS in 2022 is the reduction in the number of Requests for Evidence issued. The rate of RFEs for L-1 filing petitions dropped significantly from over 50% in FY 2021 to just over 36% in FY 2022. The rate of RFEs for H-1B filing petitions also reduced from just over 16% in FY 2021 to just under 10% in FY 2022. Reduced RFE rates allow for less disruptive employment transitions for individuals and their employers.

While the rate of requests has decreased across L-1 and H-1B filing petitions, the quality of the issued RFEs has suffered, especially for EB-1C I-140 petitions. The Service Centers often request information that has already been provided in the initial filing, such as proof that a multi-billion-dollar employer is doing business, or evidence that employing entities are related. This could be related to the training of new officers or the expanding queue of cases to be processed.

What to Watch for in 2023: Processing Time Goals, SAVE Delays & Public Charge

Processing timelines continue to fluctuate unpredictably across case types and service centers, but USCIS is expanding the number of full-time employees, with a requested budget allocation for nearly 1,500 new full-time employees in FY 2023. The agency adopted new cycle time goals aimed at processing cases in no more than six months by the end of FY 2023.

SAVE Delays
The SAVE program is administered by USCIS. It confirms an individual’s immigration status before a supplemental benefit, such as a Social Security Number or driver’s license, can be granted by the issuing agency. Prior to the pandemic, processing times for SAVE confirmation were approximately 10 days or less. Now, SAVE confirmations average 40 days with some outlier cases taking up to six months. This has immediate impact on individuals who require a driver’s license for transportation or SSN for U.S. payroll, housing, or bank accounts. USCIS expects to reduce wait times to 10 days by the end of March 2023.

Re-Implementation of the Public Charge Rule
Effective December 23, 2022, the Department of Homeland Security will formally implement the public charge ground of inadmissibility. USCIS will require a new version of Form I-485, effective December 23, 2022. Please see USCIS’s Holiday Surprise: Implementing the New Public Charge Rule and Form I-485 for more information.

Department of Labor

Unlike USCIS, the Department of Labor is facing growing backlogs without a clear commitment to improvements. In FY 2022, the Office of Foreign Labor Certification (OFLC) received an increase of applications across all categories, including a record-high number of H-2A requests and the highest number of H-2B requests since the 2008 financial crisis. The processing of H-2A and H-2B requests takes priority over PERM program filings, which has increased the processing of Prevailing Wage Determinations and PERM applications.

Key Change in 2022: Implementation of New Standard Occupation Codes

The 2018 Standard Occupation Codes demonstrate improvement in the representation of occupations across industries. However, the implementation of these new codes and wage levels contributed to the DOL processing backlogs. OFLC is continuing to conduct its baseline research to determine the normal requirements for an occupation, especially the new and emerging categories. OFLC indicated their assessments would be faster once the baseline is more firmly established but did not provide a timeline for when the research would be completed.

What to Watch for in 2023: Months-Long Processing Delays

Prevailing Wage Determinations for PERMs are averaging over six months to process, with some outlier cases taking more than one year. PERM processing is averaging over eight months for analyst review and over 12 months for audit review. These delays have significant consequences for employers and employees who rely on completing the PERM process to maintain uninterrupted work authorization. In some cases, employers are requesting special circumstances consideration from USCIS to be able to extend nonimmigrant work authorization, which is inconsistently granted.

While OFLC is prioritizing cases that remain pending from November 2021 through January 2022 and expects those to be issued by the end of 2022, they have not committed to improved processing times. OFLC requested budget for 30 additional full-time employees to assist with their backlogs. At the time of publication, the budget request was approved by the House and not yet considered by the Senate.

Customs & Border Protection

Technology advancements are central to CBP’s efforts, with a focus on contactless screening and biometric technology to safely and securely ensure travel efficiency. Nearly 300 million travelers were admitted to the United States by CBP in FY 2022.

Key Initiative in 2022: Electronic I-94 Corrections

For several years, travelers have been able to request I-94 corrections through CBP port of entry email addresses or in-person visits to a deferred inspection site. A new online form through the CBP website provides a streamlined approach to request I-94 corrections. As part of the online form, individuals can upload documents securely through the CBP website, confirming the basis for the correction. However, corrections are still made based on an individual’s specific port of entry, resulting in inconsistent responsiveness and inconsistent timelines for corrections to be made.

What to Watch for in 2023: Reduction in Ink Stamps & Increased Use of Biometric Technology

CBP expanded its pilot program to eliminate admission ink stamps at international airports as well as land ports. Historically, the ink stamp has been added to an individual’s passport at the time of entry into the United States confirming their status and period of stay. This is distinct from the visa stamp in an individual’s passport, which allows them to travel to the U.S. and request admission in a certain status.

While the elimination of ink stamps aids in contactless admission, it can contribute to challenges if an I-94 correction is required. Individuals should always request an ink stamp even if entering through a port that is part of the elimination pilot program.

Biometric Technology
In connection with the 9/11 Commission Report, CBP was instructed to biometrically confirm visitors in and out of the U.S. CBP now relies on facial comparison technology through a program called Simplified Arrival to achieve that directive. The goal of the technology is to simplify inspections, confirm identities with more accuracy and efficiency, streamline passport checks, and provide more flexibility for officers to focus on traveler safety.

A photograph is taken of a traveler during boarding or arrival, compared against an existing passport or visa photo, and a CBP officer interviews the traveler to validate results and determine their admissibility. CBP has processed nearly 200 million travelers using the technology. Photos of U.S. citizens are stored for no more than 12 hours after identity verification. If an individual does not want to have their photo taken, they may always request CBP verify their identity directly.

Summary

Each immigration agency has demonstrated its own unique approach to the obstacles of the last three years with more changes to come in 2023. For more information on how to navigate the challenges related to the various agencies, please contact your Quarles & Brady attorney or:

• Maria Kallmeyer: (312) 715-5009 / maria.kallmeyer@quarles.com
• Libby Glass: (202) 780-2664 / libby.glass@quarles.com
• Matt Mauntel-Medici: (312) 715-2739 / matt.mauntel-medici@quarles.com