USCIS Backlog as on March 31, 2008

• Naturalization Applications  – 958,663
• I-140 Applications             – 46,092
• I-485 Applications             – 762,938
• I-765 Applications             – 158,565
• I-130 Applications             – 1,387,045

For more details see USCIS Website

Unites States Citizenship and Immigration Services has recently revealed that the agency has a backlog of Naturalization cases that will take around three years to clear. The Agency attributes this to a surge in application noted since June 2007.

The surge was most probably a combined result of the Agency’s decision to almost doubling the Naturalization fee from July 2007 and a recent political campaign for the US election, which is pressing for immigrants to Naturalize.

Reasons aside, USCIS has revealed that in the summer of 2007, the agency had received around 737,223 applications and by the beginning of the fiscal year i.e. October 2007, it had approximately 1 million naturalization applications to process.

Subsequently, the processing times have also reached a staggering scale of 16 to 18 months, compared to the usual 6-month timeframe.

To tackle the backlog, USCIS has already hired additional employees and plans to hire or contract out a thousand more workers, increased the work hours, assigned dedicated staff members for application processing etc. Interestingly enough, lawyers pressing for speedy processing of their client’s application have found surprising allies in Senators and Congressmen, who are suddenly faced with the reality that more than half a million people will not be eligible to vote in the November 2008 presidential elections.

Criticisms are rolling in from both lawyers and politicians, who are arguing that USCIS should have geared up for this surge, as it was anticipated. It has also been pointed out that USCIS had increased the applications fees last year on the premises that the additional funds will “cut-down on the processing time” in future.

The U.S. Department of Labor (DOL) has declared that the agency has cleared almost 99% of the labor certification backlog, a few cases are pending for slow employer responses.

As evident from the Visa Bulletins published on January 2007 and February 2007, the Employment Based Third Preference quota (EB-3) has become completely stagnant as backlogs continue to grow, fuelled by increasing demand against the comparatively nominal cap allowed. For nationalities like Indians and Chinese, the waiting period might exceed five years, unless the US Congress acts soon.

Meanwhile, our team at Immitips has come up with a few strategies to bypass this backlog without jeopardizing an employee’s existing place in line.

Option 1: Re-file under 2nd Preference & Transfer the Old Priority Date

Under current regulations, the U.S. Department of Labor (DOL) will permit an employer to file more than one LC (Labor Certification) for the same employee.

Firstly, an employer may file a second LC for an employee and retain the filing date of the first LC.  This is possible only if the first LC was filed under the old paper-based system and if the second LC is essentially identical to the first. But to retain the original filing date, the employer must withdraw the first LC at the time of filing for the second LC.

Secondly, an employer may also file a second or subsequent LC for an employee without jeopardizing an older LC case. In this situation, the second LC will be accorded a new filing date but the employer is not required to withdraw the first LC.

NOTE: An individual does not actually “possess” a priority date until the CIS has approved an I-140 for that employee. The priority date granted by the CIS is the date the LC was filed. Thus, a pending or approved LC does not mean the employee has a priority date. Until an I-140 has been approved based on an approved LC, the employee merely has an LC “filing date.” An LC filing date is not transferable; a priority date is transferable.

Option 2: Substitute on Another Approved LC & Transfer the Old Priority Date

Sometimes an employer may have an approved LC but the particular employee is no longer with the company i.e. the employee may have received permanent residence through marriage; left employment; or was terminated.

In such a case, the employer is free to use the approved LC to file an I-140 for a different employee, as long as the employer continues to have a bona fide job opening and to offer the same terms of employment. Also, the substituted employee must have met all the requirements for the position before the LC was filed. When substitution is approved, the employee receives the old LC filing date as a priority date.

If the employer later determines it has a job opening for a different position that requires a bachelor degree plus five years experience, or a master’s degree, it may file a new LC for that employee. When that LC has been approved, the employer may file a second I-140 for that employee. The new I-140 will be approved under the 2nd preference quota. As a bonus, the employee will receive the May 1, 2001 priority date (from the 3 rd preference I-140).

NOTE: With DOL pushing for an approval on its Final Rule, which will disallow such substitution, employers may not have much time left in their hand. We suggest they hurry up and get the substitution done within the next two to three months, before the Rule comes into effect.