On August 28, 2017, the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security agency responsible for adjudicating immigration benefits, announced that it will begin expanding the in-person interview requirement for all employer-sponsored permanent residency applications. Eﬀective October 1, 2017, the agency will begin to “phase-in” personal interviews at the nearest USCIS Field Office for all adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).
Currently, USCIS practice is to waive the personal interview requirement for employer-sponsored applicants unless the applicant’s background check uncovers an issue or the case is randomly selected for quality control purposes. The waiver of the personal interview requirement for these types of applications has been in place for well over a decade.
The agency’s announcement is in response to a recent Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” enacted by President Trump. The agency’s new action is intended to “further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.” In announcing the change, the Acting USCIS Director James McCament stated:
“This change reflects the Administration’s commitment to upholding and strengthening the integrity of our nation’s immigration system. USCIS and our federal partners are working collaboratively to develop more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.”
According to the USCIS, in-person interviews will provide USCIS oﬀicers with “the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.”
In its announcement, the agency stated that it would meet the additional interview requirement through “enhancements in training and technology” as well as “transitions in some aspects of case management.” Therefore, the overall impact of this new agency directive on the applicant, the applicant’s dependents, and the sponsoring employer will depend on how aggressively the agency starts scheduling personal interviews.
To effectuate this policy change, the applicant’s immigration file will be transferred from the large, regional USCIS Service Center (at which the application was initially filed) to the nearest local USCIS Field Office. Which USCIS Field Office receives the transferred file will depend on the applicant’s last known residence. The local field office would then be responsible for contacting the applicant, scheduling a date, conducting the interview and then rendering a decision. Any requests by the applicant for rescheduling due to international travel or other conflicts would likely be handled at the local level.
Under current staffing levels and government resources, this change will likely result in significant processing delays and cause other unintended negative consequences to both the applicant and their employer. Local field offices are much smaller, both in physical size and in the number of employees, and they are not equipped to handle a massive influx of interviewees.
Transferring thousands of pending cases to local field offices will also increase the likelihood of human error or having the physical file lost or misplaced. Additional government delay also means additional costs to the employer to extend the worker’s underlying nonimmigrant visa status and/or their Employment Authorization Document. In addition, the applicant will need to take time off work to attend the interview at the local field office (a process that can take up most of the day depending on wait times and office location) and continue to face uncertainty.
There are many unanswered questions left as a result of the agency’s recent announcement. For example, the agency directive does not differentiate between principal applicants and accompanying dependents. Therefore, the number of cases affected by this policy change could be much larger than anticipated. We will keep clients apprised of any new information as it is received.
Garvey Schubert Barer (GSB) has an experienced immigration team that can assist employers with all aspects of sponsoring foreign national employees. Please contact me, Rob Neale at email@example.com or at 206.816.1396 or the GSB legal professional with which you regularly work if you have any questions.
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.