Due to long processing times, since 2014 companies have been forced to pay $2.4 billion in “premium processing” fees to ensure their business immigration cases are decided within a reasonable time. Critics say U.S. Citizenship and Immigration Services (USCIS) has no incentive to process cases faster because the more time it takes, the greater the revenue the agency receives in additional premium processing fees.
To understand premium processing, imagine you sat down at a restaurant and saw a large asterisk next to the price of an entrée that costs $20.
“What does this asterisk mean?” you asked.
“It means the meal costs $20 but you have to sit here for 9 hours before I bring it out so you can eat it,” said the waiter.
“Nine hours? That’s outrageous! Isn’t there any alternative?”
“Yes,” said the waiter. “If you pay for ‘premium processing,’ you can get the meal after about 15 minutes but it will cost you an additional $1,440.”
“What if I want to eat at a restaurant and I don’t want to wait 9 hours or pay an extra $1,440?”
“You don’t have a choice – we’re the only restaurant in America.”
That sums up what businesses and attorneys say is their experience when filing immigration applications with U.S. Citizenship and Immigration Services. USCIS has a monopoly on its service and takes a significant length of time to make decisions on cases.
At the California Service Center, USCIS takes 9 to 12 months to decide a case for an H-1B petition. That is too long for most businesses, particularly if an H-1B visa holder needs to work at a new location or change jobs.
The “solution” from USCIS is for employers to pay a premium processing fee of $1,440 to have the case decided within 15 calendar days (which will change to a longer 15 “business” days under a proposed fee rule). There is a caveat: the clock “stops” on the 15 days if USCIS issues a Request for Evidence (RFE). USCIS issued an RFE in nearly half of the completed cases for H-1B petitions in the first quarter of FY 2020. That adds one or two months to the time for employers, depending on the request.
Between FY 2014 and FY 2019, employers paid $2.39 billion in premium processing fees, according to USCIS data obtained via the Freedom of Information Act (FOIA). Jonathan Wasden, an attorney with Wasden Banias, LLC, filed the FOIA and shared the data with me. Premium processing is available for E, H, L, O and a few other temporary visa classifications as well as many (I-140) immigrant petitions for alien workers.
“If you don’t upgrade to premium, the agency will take up to a year to make a decision at current rates,” said Wasden in an interview. “If you upgrade, you may get a decision in 15 days. It’s almost like the agency is intentionally slow rolling the adjudication of these petitions as a way of extorting money from companies for premium processing.”
Attorneys believe USCIS has made paying a premium processing fee, in effect, a requirement in the vast majority of business immigration cases because it takes so long for a decision through the regular process (i.e., without paying an extra fee). “Particularly in change of employer cases or amendments due to a new work location it’s a necessity,” said Dagmar Butte, a partner at Parker, Butte & Lane, in an interview. “While under the law, the employee can, in theory, go to a new employer or location upon filing, the rising denial rates mean there is a great deal of risk to the employee if he or she moves prior to an approval.”
A recent report from the National Foundation for American Policy found, “In FY 2019, USCIS adjudicators denied 21% of H-1B petitions for “initial” employment (which is primarily for new employees) and 12% of H-1B petitions for “continuing” employment (mostly for existing employees).
From April 2018 until February 2019, USCIS suspended the use of premium processing for cases involving a change of employers and a move to a new location. That made life perilous for H-1B professionals moving to a new job. With high denial rates, it meant when an individual changed a job prior to gaining an H-1B approval, if a case was denied afterwards, then the employee would be without both the old and new job. He or she would likely need to pack and leave the country to avoid serious immigration consequences. As a result, USCIS had a chilling effect on H-1B visa holders changing jobs.
In 2018, when USCIS increased the fee for premium processing, it stated, “USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase.” A series of USCIS policies under the Trump administration, including an increase in Requests for Evidence and requiring in-person interviews for employment-based green cards, have diverted agency resources and increased processing times for applicants.
In FY 2019, USCIS collected $545 million in premium processing fees, equal to 11.5% of the agency’s $4.7 total budget authority for FY 2019. Here is the irony: If USCIS dramatically improved its processing times, then wouldn’t employers stop using premium processing? (USCIS did not respond to a request for comment for this article.)
It does not appear USCIS is attempting to improve processing times. Government Executive reported, “The Trump administration has issued a hiring freeze for non-asylum officers at U.S. Citizenship and Immigration Services.” The administration’s FY 2020 budget transferred over $200 million in USCIS fee money to Immigration and Customs Enforcement (ICE).
While some politicians complain about monopolies in the private sector, economists point out U.S. consumers have choices on where to buy their goods, search the internet or use social media. In contrast, USCIS is a monopoly in every sense of the word, since immigrants, businesses and temporary visa holders have no choice but to use its service.
“In the private sector, every aspect of the hiring process – screening, interviewing and background checks – has gotten faster – but the government is going in the opposite direction on immigration benefits,” Lynden Melmed, a partner at Berry Appleman & Leiden and former Chief Counsel for USCIS, said in an interview. “Premium processing is a very expensive Band-Aid that allows companies to bridge that divide.” At a cost of $2.4 billion over the past 6 years, premium processing is likely the most expensive Band-Aid in American history.