On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) in an effort to adjust its application fees. The NPRM discloses extensive details about USCIS’s operations, including information about the amount of time USCIS actually needs to adjudicate specific petitions, called the “completion rate.” Fortunately, the 2023 NPRM is only the latest of several such NPRMs published by USCIS, which USCIS also published in 2016 and 2019.
By studying the NPRMs over these years, we are able to gain insights into how USCIS’s internal operations have changed over time. What we learn provides some answers and many questions – including questions that might only be answered through litigation (such as through a mandamus action).
What is a Notice of Proposed Rulemaking (NPRM)?
USCIS, as an agency of the U.S. government, must publish such notice as part of the rulemaking process, which is a fundamental element of U.S. administrative law. The NPRM is intended to foster transparency while giving the public an opportunity to provide feedback on the proposed rule.
Why did USCIS publish an NPRM in January 2023?
In its NPRM, USCIS proposed that many of the filing fees that it charges for applications for immigration benefits be increased – some substantially. In its press release, USCIS alleged that the reason for the fee increase was to “allow USCIS to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.” Filing fees are a key part of USCIS’s funding – USCIS notes that it receives about 96% of its funding from filing fees.
What do the NPRMs show?
It is clear from the figures presented in the 2016, 2019, and 2023 NPRMs that, for many immigration petitions, USCIS is now allocating significantly more hours to each application than it did even in recent years.
For example, in 2016 USCIS needed an average of 6.5 hours to adjudicate a single I-526 petition. In 2019, USCIS needed 8.65 hours to adjudicate the petition. Now, in 2023, it needs 20.69 hours to adjudicate the petition. That means that over the course of only seven years, the amount of time USCIS requires to adjudicate a single I-526 petition has, on average, increased by a factor of more than three.
Remember that this is not the amount of time the applicant must wait in line for USCIS to issue a decision on their application – that figure is currently a whopping 58.5 months for an I-526 petition.
Instead, these completion rates, to quote USCIS, “reflect what is termed ‘touch time,’ or the time an employee with adjudicative responsibilities actually handles the case.” The completion rate, in other words, is the average amount of time a USCIS employee spends on a given petition before reaching a decision on it.
The dramatic increase in USCIS’s completion rates raises a number of important questions about USCIS’s internal policies. To see why, let’s think of USCIS as your local cheeseburger restaurant.
A Comparison: USCIS Petitions and Cheeseburgers
One day, the manager of your local cheeseburger restaurant notices that he has been receiving a lot of complaints from customers saying that they are waiting too long to get their cheeseburgers. “Well,” the manager thinks, “that’s because our cheeseburgers follow my grandmother’s original recipe and are the best in town.” In fact, the restaurant does usually have a line out the door. Plus, Covid restrictions required the restaurant to reduce staffing and remove a few tables, so there is now less seating space and fewer servers. Also, this restaurant, like many others, lost a good amount of money during Covid, so it cannot easily increase the number of workers or dining space available.
These factors might explain part of why the line is so long. But then the manager shares an interesting piece of information: over the past seven years, the time it takes each cook to prepare a cheeseburger has increased, on average, by a factor of three. Specifically, in 2016 a cook made a cheeseburger in 6.5 minutes, on average. Now, it takes them over 20 minutes. That’s a lot of time to spend on each cheeseburger.
So why would a cook who could make a cheeseburger in 6.5 minutes in 2016 need more than 20 minutes to make a cheeseburger in 2023? The cheeseburger hasn’t changed. Maybe the restaurant manager told the cooks that their main job is to sweep the floors rather than to cook burgers, and has started training them accordingly. Maybe the manager took away kitchen supplies that helped the cooks make burgers more quickly in the past. Maybe the restaurant manager let the cooks in on a little secret: the manager actually never liked serving the customers and doesn’t care if they feel taken care of. Clearly, either the restaurant or the cooks are doing something different.
For the customers who want their burgers to arrive faster, it’s important to figure out what that is.
What do cheeseburgers have to do with challenging USCIS’s delays?
When we look at the completion rates that USCIS published in its NPRMs, we see that the time a USCIS employee needs to adjudicate a single Form I-526 petition follows a familiar pattern: they needed 6.5 hours in 2016, 8.65 hours in 2019, and 20.69 hours in 2023. This is more than a three-fold increase in the average amount of time a USCIS employee needs to adjudicate a single I-526 petition.
Like our restaurant manager, USCIS has pointed to Covid and financial struggles to explain why the lines its customers wait in grow longer and longer each year. But, as we saw with our restaurant manager, this does not explain why its employees now need more than three times the amount of time to adjudicate a petition than they did a mere seven years ago.
Clearly, there is something occurring inside USCIS that accounts for the change. Perhaps it is USCIS’s internal policies or the training or instructions it provides to its employees. Perhaps it is a deliberate effort within USCIS to reduce efficiency. Unfortunately for those waiting for their petitions to be adjudicated, USCIS has not been forthcoming about the reasons.
When we file a mandamus action in federal court to compel USCIS to do its job and adjudicate a petition within a reasonable time, we are, in effect, asking USCIS to disclose the reasons for its delays so that the public can have a better understanding of how and why the agency contributed to the extensive delays that plague its operations. Litigation may well be the only hope of holding USCIS accountable and compelling it to make the changes that are needed to broadly improve the agency’s operations in the long term.
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