CIS Ombudsman’s Updates on EAD and H1B Processing Delays

The Citizenship and Immigration Services Ombudsman (CIS Ombudsman) held a teleconference on August 31, 2016 to discuss processing delays for certain types of cases. More specifically, the teleconference focused on adjudication delays of applications for employment authorization documents (EADs), change-of-status (COS) applications, and H1B petitions requesting extensions of status (EOS).

EAD Applications – File 120 Days Before Expiration Date

By regulation, the USCIS is generally required to adjudicate an EAD application (form I-765) within 90 days of filing. However, the CIS ombudsman reports that, during fiscal year 2015 (FY15), 22 percent of EAD applications took the USCIS longer than 90 days to process. Moreover, the USCIS recently proposed eliminating the 90-day processing requirement, leading to “… legitimate public anxiety that EAD processing times will lengthen without a fixed-time requirement for adjudication.”

One piece of advice provided by the CIS Ombudsman was to file EAD extension applications as early as possible, noting that such applications typically may be filed up to 120 days prior to the expiration date of one’s EAD. This sentiment is echoed in the MurthyDotCom NewsBrief, EADs Delays: Filing and Follow-Up Suggestions (17.Sep.2014).

Change of Status (COS) Delays

The CIS Ombudsman notes that COS filings have been taking the USCIS months to adjudicate. In an attempt to reduce these processing delays, the USCIS temporarily transferred COS cases from the Vermont Service Center (VSC) to the California Service Center (CSC).

As of September 1, 2016, the USCIS now requires all COS applications to be filed at the Nebraska Service Center (NSC). As always, however, applicants are reminded to check the USCIS website for the most current instructions on where to file applications, as filing locations may change.

B-2 to F-1 COS of Particular Concern

The Ombudsman notes that one of the most common COS application scenarios involves a foreign national in B-2 status applying for a COS to F-1 student status. Such cases are taking several months to adjudicate, meaning that many are not approved until after the university’s classes have already started for the new semester.

Moreover, even if the applicant is in valid status at the time of filing, many of these cases are denied because of how the USCIS interprets a particular regulation that pertains to specific status requirements for students. Accordingly, the CIS Ombudsman cautions prospective students to seek advice from a designated school official (DSO) or an immigration attorney prior to filing a COS application to F-1.

Processing Delays with H1B Extensions

Many stakeholders have been raising serious concerns over the processing delays of H1B extension filings. These delays create substantial hardships for employers and H1B workers, including potential for gaps in employment eligibility. The current regulations provide an automatic extension of work authorization beyond the beneficiary’s current I-94 based on a timely filed H1B extension of status (EOS) to work for the same employer. Yet, this is proving to be insufficient, given that processing times for H1B EOS petitions are approaching – and sometimes exceeding – 240 days. This is forcing many employers to pay for premium processing, not because of a need for an expedited approval, but simply as a means to have the case adjudicated within a reasonable timeframe. And, these delays are especially problematic for nonprofit organizations that cannot afford the $1,225 premium-processing fee.

The CIS Ombudsman reminds employers with long-pending H1B EOS cases that a service request may be opened with the USCIS National Customer Service Center when at least 210 days have passed. Further, in an effort to address these adjudication delays, the USCIS is now using the NSC as a central filing location for nearly all H1B extensions that are filed for existing employees. The one exception is that cap-exempt employers should continue to file H1B extension petitions with the CSC. But, again, prior to filing a petition, one should always check the USCIS website to ensure that the filing location has not changed.

Conclusion

While this update from the CIS Ombudsman may not resolve the ongoing problems at the USCIS related to processing delays, it does provide some guidance and evidences that the agency is aware of the public’s concerns. MurthyDotCom will provide future updates as new information becomes available.

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