Normally the process of filing a petition with USCIS is pretty straight forward. Once an employer files a petition, USCIS issues a receipt. The last few weeks this has not been the case with most filings. There have been more rejected cases, filing fees being returned, or missed by USCIS. Some files are being separated and returned in part, whereas other parts are still missing.
What employers need to know:
1. What is going on with USCIS the last few weeks?
October is usually a busier month for employment based adjustment of status filings (last stage of the Green Card process.) Employers typically file more I-140 petitions for alien workers with Adjustment of Status applications for their international personnel, causing an increase of cases that USCIS has to process through intake and issue receipts. It appears that USCIS has not been coping well with this increase. In the past few weeks, we have noticed, and our colleagues at other business immigration firms have noticed that filings are being returned. Some examples of what we are all seeing: empty boxes being returned with a rejection notice saying the entire filing is being returned for missing fees when fees were included; rejection notices asking for additional fees than needed; rejection notices without the name of the applicant, making it impossible to track which file was rejected; phone calls from USCIS officers asking us what we filed because only half of the file made it through the intake process and now they are trying to find the other part. Some petitions are being returned for "missing filing fees" when the employer did include filing fees. Because the filing fees are not being returned, employers are cancelling the checks and issuing new ones, only to have USCIS reject the second filing because the original checks were cancelled.
2. What should employers do?
First, employers need to understand the timeline. The filings need to reach USCIS and be accepted by USCIS before the Visa Bulletin moves backwards in order to not lose eligibility. Second, employers need to remain calm, focused, and persistent. They need to keep re-filing the cases until USCIS issues a receipt. This is because there is not an appeals process if USCIS incorrectly rejects or loses a filing. USCIS has many service centers, and there is not a streamlined process to check on filings that have been submitted.
3. Stay the course.
Like the ice breaker pushing forward in our picture, employers need to stay the course and get petitions on file to enable continuing work authorization for their international personnel.
Leyla McMullen, Mdivani Corporate Immigration Lawyer
