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The Emergency Stopgap USCIS Stabilization Act and What USCIS Furloughs Could Mean for U.S. Businesses

Updated 8/27: Just days before USCIS was set to furlough over 13,000 employees, the agency announced on August 26, 2020, that it will cancel the upcoming furloughs through the end of the current fiscal year 2020.  Despite canceling furloughs, employers may still be impacted by processing delays.

On Saturday, August 22, 2020, the House of Representatives passed H.R. 8089, the Emergency Stopgap USCIS Stabilization Act, in an attempt to forestall the impending U.S. Citizenship & Immigration Services (USCIS) furlough of about 13,400 employees that is slated for August 30, 2020. The bill will now go before the Senate, where its sponsor and co-sponsors hope for a quick passage soon.

Although H.R. 8089 contains some positive expansions and reporting requirements, it does not necessarily address the broader issues that may have contributed to USCIS’s budget shortfall. Additional information about the furloughs—what it could mean for U.S. businesses and communities, if not averted—is below.

USCIS Funding Background

A critical role of USCIS is to adjudicate requests for immigration benefits in the United States. Benefits that include:

  • work authorization petitions for nonimmigrant workers (e.g., H-1B, L-1, O-1)
  • employment-based permanent residency (green card) applications, and
  • naturalization applications.

Unlike other immigration agencies, USCIS is funded almost entirely by the filing fees associated with these petitions.

What’s Led Up to This

In May 2020, USCIS requested emergency funding of $1.2 billion from Congress as a result of what the agency said was a projected budget shortfall from a drop in applications and corresponding filing fees that was expected to last through FY2020. Without the Congressional assistance, USCIS said, the agency would need to furlough over 13,000 of its employees.

Furlough notices started going out to USCIS employees in June, initially set to begin August 3, 2020. However, the date has since been extended to August 30, 2020, following considerable pressure by Congress and U.S. businesses and communities. Reports indicate that USCIS has, in fact, received higher-than-expected application receipts that provide the agency with sufficient funding through the remainder of the fiscal year and beyond. Despite this, furloughs are still scheduled for August 30 for roughly 70% of the agency’s 19,800+ workforce.

Impact on Employers

This furlough could have significant consequences on U.S. businesses and communities that stem beyond the loss of work for USCIS employees during a global pandemic, including:

  • delays in processing immigration petitions that are already subject to significant backlogs;
  • suspensions or delays in biometrics and other in-person services; and
  • a potential overall negative impact on U.S. employers who rely on vital services and skills of foreign national employees for their business.

What’s in H.R. 8089

There has been a variety of calls to action and Congressional effort to avoid the furlough, including H.R. 8089. This bill proposes to forestall the USCIS furlough in two main ways:

  • increase the premium processing fee of $1440 to $2500 for immigration filings already eligible for premium processing, and
  • expand the availability of premium processing to certain new filings at set premium fees as further detailed below.

Specifically, the H.R.8089 bill permits USCIS to set premium fees for new benefit types without rulemaking, if the fees are consistent with the following:

The bill also requires USCIS to develop a 5-year plan to reduce processing timeframes for benefits requests, among other requirements.

H.R. 8089 is intended to offset some of USCIS’s financial deficit by generating income via increasing and expanding the agency’s premium processing program. However, premium processing is entirely optional, which means that employers and applicants can choose to have their petitions and applications processed under the normal processing guidelines. It is unclear if the premium processing option under the House bill will be enough to generate the income that USCIS says it needs.

While the H.R. 8089 bill advances important reporting requirements and premium processing availability to new petition types, immigration advocates are urging Congress to do more to address the underlying issues that led to the budget shortfall in the first place.  Advocates also are also asking Congress to hold USCIS accountable for adjudicating requests for immigration benefits efficiently—whether filed by premium or regular processing. This includes additional safeguards in place related to transparency of USCIS spending, elimination of unnecessary adjudication hurdles and delays, and limitations on the transfer of USCIS funds for enforcement measures, among others.

Nilan Johnson Lewis will continue to monitor the situation of USCIS furloughs closely.

For more information, feel free to contact the immigration team at NJL.

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