I-140s and Retrogression : Processing Delays
Posted Oct 03, 2008
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As is apparent from the questions we receive from our clients and on the MurthyChat and the MurthyForum, many readers have noticed that the processing times for I-140 Immigrant Worker Petitions have increased. The USCIS confirmed in an August 20, 2008 Service Center Operations meeting that the USCIS is prioritizing I-140 processing based on visa number availability. The notes from that meeting were released only recently.
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Processing of I-140 Petitions Continues
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The USCIS denied that it has stopped processing I-140s affected by retrogression, but stated that I-140s not subject to a backlog are being prioritized at the Nebraska Service Center, as well as the Texas Service Center (TSC). USCIS also stated that the TSC is setting up procedures to identify I-140s that are beyond normal processing times. It specifically confirmed that I-140 petitions filed under the employment-based, third preference (EB3) category were still being worked on, even though, at the time of the meeting in August, the Department of State (DOS) Visa Bulletin reflected complete "unavailability" of visa numbers in EB3.
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USCIS Processing Cases Based on Priority
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It is fairly typical of the USCIS to prioritize case processing, based upon availability of an immediate immigration benefit. This is particularly so when there are pressures to process some other type of particularly pressing case. While not specifically stated, the USCIS is under pressure to process huge volumes of naturalization (citizenship) cases. They also have had demands to process fairly large numbers of Adjustment of Status (I-485) applications in August and September 2008, to avoid wasting immigrant visa numbers before the end of the fiscal year on September 30th.
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Benefits of I-140 Processing and Approvals
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Even though there may not be a visa number available for the particular I-140 case, based upon the EB category and priority date, there are still benefits to obtaining approval. In addition to simple peace of mind, there is at stake potential eligibility for 2-year EADs, 3-year H1B extensions, priority date retention, and AC21 green card portability. It is also simply unfair and unjust to fail to adjudicate cases within a reasonable time. U.S. employers and their foreign national employees need to know in a timely manner if there is a defect in the case so that they can plan accordingly.
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Conclusion
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While it is understood that all organizations need to prioritize their work, cases are supposed to be adjudicated within reasonable timeframes. They are not supposed to be placed on the back burner simply because the beneficiary is not immediately eligible for the ultimate immigration benefit sought. It is detrimental to keep I-140s in extended limbo, and the USCIS is urged to find a way to adjudicate these cases in a timely fashion.