Are USCIS Furloughs Still Coming?  What Happens Now to H-1B and Other Processing Times? A chat with Lynn O’Brien

As hurricane season heats up, many in the business immigration world are beginning to wonder if USCIS will be able to weather its own stormy outlook. Furloughs and higher fees almost certainly seem to be on the agenda, with the service’s for-profit structure leaving it unequipped to handle the visa freeze instituted by President Trump’s June executive order (likely causing a reduction in petitions filed for employees outside the US who require visas to enter). Petitioning organizations seeking H-1B and L-1 visas, which have formed the backbone of the business immigration world for several years now, are faced with doubts as to the predictability in processing of these categories in the short term. Many businesses do not know if they will be able to secure their most valuable foreign national employees for later in 2020 or for 2021.

In these dire straits, business immigration professionals have a strong incentive to accelerate processing times. Businesses want to make sure their applications are at the top of the stack because at the very least, USCIS’ problems typically translate into slower processing times. Latecomers may not be responded to until mid-2021.

For this post, Park sat down with Lynn O’Brien, Senior Associate Attorney at Berry Appleman & Leiden LLP, to discuss the best practices firms can apply this year to accelerate processing times.

So, USCIS seems to be in trouble this year.

It does seem that way. The latest news is that the furlough scheduled for August 30, 2020 has been suspended because USCIS expects to be able to maintain operations through FY2020—but then what? As a reminder, FY2020 ends on September 30, 2020, so the reprieve is temporary. For some clients, BAL is recommending Premium Processing of cases now, especially for any case where the employer or employee may not have time to wait several months for a decision. It’s certainly a tough spot for employers who may not have budgeted for premium processing but who have to weigh the risks that their cases may not receive decisions when expected, or that there’s some possibility of another furlough threat. And, if that were to happen, would premium processing remain available?

What can businesses do to try and gain some clarity?

To take control, we are seeing businesses utilizing premium processing where available. While I also know that some businesses are of the mindset that premium processing just means that an RFE comes more quickly (given the rise in RFEs in 2019), it’s still important to understand the business immigration landscape in 2020 before dismissing the idea of premium processing a case because it may lead to an RFE.

What options do firms have when facing an RFE?

For those cases that do get hit with the RFE, COVID-19 seems to have been effective in widening the response window. Many of my clients received RFEs where the response is due in 87 days as expected, but, for a limited time only, USCIS is allowing an additional 60 days to respond to certain requests. (Always check the USCIS website for updates.) This provides plenty of time to coordinate an effective RFE response.

For those preparing for cap cases round 2, what are some best practices in preparing an RFE response?

It comes down to three things: be quick, be effective, and think like a litigator. That last one might seem mysterious, but bear with me.

Be quick: Do not dilly-dally when preparing the RFE response! USCIS has just re-opened CAP, meaning there are additional H-1B visa slots at stake. Wasting time on the RFE response will shove your application straight to the bottom of the pile, potentially missing out on a wider approval window. And, even if you have a non-cap case, you still don’t want your case to get further down in the queue under the cap cases.

Be effective: Try not to spread responsibility for the response too far. What I mean is, when preparing the different components of the response package, keep as much as you can in-house. A number of my legal colleagues outside of BAL have told me that when the going gets rough, they ask applicants and representatives of the petitioning organization to handle logistics! This might seem like a time-saver for a swamped attorney, but trust me—it never works out when an employee or company takes over handling logistics related to obtaining an expert opinion or professor evaluation.

For instance, when dealing with difficult RFEs, the expert opinion letter is a key component to the response, and the complexity of these documents is usually lost on worried applicants and bottom-line-driven petitioners. Leave it to the pros to seek out the right legal services for the case. One-stop-shops like Park can help streamline the process by providing their expertise on difficult RFE challenges, but the success story starts with attorneys collaborating with legal services vendors, not sending clients on fetch errands.

Think like a litigator: The expert opinion letter brings me to my next point. A lot of attorneys, especially those who cut their business immigration teeth in the Trump era, have a tendency to pull out all the stops on the RFE response. This can be a mistake—there’s no need to buttress the evidence on issues USCIS didn’t challenge in the RFE! Anyone who has practiced in defense litigation knows that when you have to put a client on the stand, you coach them to answer only the question asked. You do not offer information. The same is true for RFE responses. For instance, in H-1B applications, specialty occupation is one of the most common challenges—USCIS will say they don’t believe the position requires a Bachelor’s degree. Some attorneys think an expert opinion letter that responds to specialty occupation and backs up the beneficiary’s qualifications for the role is best. But this can invite trouble. Maybe before that response, USCIS didn’t see any issue with the beneficiary’s qualifications, but now that you drew attention to them, maybe USCIS will review them more carefully and then issue a NOID. As you and I have discussed, Park knows firsthand what happens when a beneficiary’s qualifications weren’t an issue before, but in reviewing the RFE, Park has seen USCIS raise issue with the professor’s analysis of the beneficiary’s academics and move to deny on that basis. So that’s why I tell my colleagues to pretend they are defense counsel with these challenges: less is more, only answer questions USCIS asks!

Makes sense. Hopefully, these practices can help attorneys gain more clarity as RFE season drags on.

It does look like the biggest impact of the challenges facing the Service will be longer processing times. Getting in early and staying smart about the response—these are the best tools attorneys working in business immigration have to deliver value and confidence to their clients in this environment.

Lynn O’Brien is a Senior Associate Attorney in the Northern Virginia office of Berry Appleman & Leiden LLP. She concentrates her practice on business immigration matters including nonimmigrant and immigrant visa issues, advising clients on every step of the process.  She represents clients in various industries so that US employers can obtain the talent they need when they need it. It’s no surprise that she has spoken on topics including best practices for responding to Requests For Evidence since she loves the art of arguing with the government. She also frequently speaks on other topics including the unpredictable immigration environment and program management issues, bringing the insider perspective from a firm devoted exclusively to corporate immigration. She also wants you to know she can beat you at 80s music trivia.