A green card is a terrible thing to waste. But that’s exactly what U.S. Citizenship and Immigration Services might be doing. The agency by most accounts still hasn’t returned to full operating capacity after two years of pandemic, so it’s having trouble processing all of the visa numbers available. The Federal Drive with Tom Temin got more information from attorney Steve Plastrik of Berry Appleman & Leiden LLP.
Tom Temin: And we should begin by saying you are a former USCIS attorney so you know, where have you speak here.
Steve Plastrik: Tom, thanks for having me. Yes, I worked at U.S. Citizenship and Immigration Services for about five years previously.
Tom Temin: All right so describe the process, the green card process that we’re talking about here that they’re having trouble getting through?
Steve Plastrik: Sure, so the green card process is the process of obtaining lawful permanent residence in the United States. And there’s two main pathways through this: One is based on family relationships to a U.S. citizen, or lawful permanent resident, and the other main route is through your employment in the United States. And it’s a multi-step process that requires both demonstrating your connection to a U.S. citizen or lawful permanent resident family member in a qualifying way, or demonstrating a qualifying occupation and job opportunity for yourself. And after that, you have to file another application that will demonstrate your eligibility for that green card. And so it can take many years, and it’s a long winding process for a lot of folks.
Tom Temin: And each year, there’s a set number of green cards available, correct? There’s different levels of green card or different classes of green card, correct?
Steve Plastrik: Correct. There are caps that are placed by congressional law on the number of green cards that are available each year. And at the end of the fiscal year, the green cards that are not used in each of those categories some of them rollover into different categories for later years. But because of the way the system works at the end of the fiscal year, some number are also lost if they’re not issued within that year.
Tom Temin: So what is the issue for USCIS? What’s the problem here that they’re not being seemingly able to get to all of the numbers, that is to say all of the applications associated with numbers, that they have?
Steve Plastrik: That’s a great question. And the answer is complicated. There’s a number of different factors that have gone into creating the situation this year. First, there’s a record number of employment based green cards available this year. This is because in the previous year, the family-based green cards were not able to be issued in the full amount. And part of that was operational challenges resulting from COVID also restrictions on offices being open both in the United States and abroad at the State Department. And that made it difficult for the agencies to issue family-based green cards, which then rolled over into the employment-based category at the end of the fiscal year. So USCIS is starting with approximately 280,000 employment-based green cards that it can issue this year, and is still working through the operational challenges related with return to the office and just addressing the return to work after office closures.
Tom Temin: So how this works is if someone feels they can do work that is needed in the United States under one of those numbers, that person applies, and then gets a number and then that becomes almost like their case tracking piece?
Steve Plastrik: Yeah, at a high level. There’s a lot of restrictions on who is eligible to apply for that green card. You have to have demonstrated that you qualify for one of the categories and be eligible within a cap based on your country of birth in order to be able to even apply for that green card and get in that line.
Tom Temin: So this could be like programmers, for example, computer scientists, that’s one of the big categories every year, correct?
Steve Plastrik: Yes, the different categories for employment-based green cards are based on qualifications. And so there’s some that are available for outstanding researchers, multinational managers or executives, or individuals with a advanced degree in a job offer in that occupation.
Tom Temin: We were speaking with Attorney Steven Plastrik of Berry Appleman & Leiden. And the practical effect of this then is all of the numbers could not be used. Is this because of a lack of USCIS personnel capacity, then, what does that stem from?
Steve Plastrik: That’s certainly an aspect of it. The agency has run into funding issues for a number of years. And that’s a result of the fact that approximately 97% of the agency’s funding comes from the fees associated with immigration filings. And during the pandemic in particular, there was a large drop off of filings, which meant that the funding for the agency also decreased. On top of that there’s been operational challenges at the agency that have slowed down processing, increased costs over the number of years and also attrition within the number of officers working within the agency. And so some of it is funding, some of it is also staffing. And some of it is also just it’s a very large task with this record number of green cards available this year.
Tom Temin: The slower than that they are able to process them, the less revenue they get. And it’s kind of like a self-fulfilling negative vortex they get themselves in.
Steve Plastrik: Absolutely.
Tom Temin: And you’ve got some recommendations for how they can get out of this hole. What are some of those?
Steve Plastrik: So the good news is that the agency has already taken really good steps forward in streamlining its processes and also tackling this immense task in front of it. They’ve begun waiving interviews for certain employment-based applicants who don’t present any eligibility issues. That means that they don’t have to bring applicants in for interviews into the office. They’ve also begun shifting work around the country to different office locations that have capacity to adjudicate these kinds of applications, and are also taking some other steps to transfer eligibility between categories in order to maximize the number they can use. But what we’ve asked for in the article that we published was really taking these initiatives and pushing them even further, it’s a whole year-long process to issue green cards. And they need to do all the steps that they can early in the year in order to maximize the usage at the end of the year. And one of the things we’ve recommended is implementing what’s called Tiger Teams. And these are teams of experts with plenty of experience and operational understanding who can cut through the difficulties and really focus on streamlining the process, hitting targets in order to issue the maximum number of green cards that they can.
Tom Temin: And even some small things like having interviews where they’re necessary by video, and therefore people don’t have to travel, and there’s not all that overhead effort.
Steve Plastrik: Absolutely. Also working earlier in the process to consolidate the hardcopy files that are still the backbone of U.S. Citizenship and Immigration Services, adjudications, and processes, making sure that they know that an interview or an adjudication that’s going to be occurring, that all of the files are located in one place. So the officer can pick everything up at once and make a decision without having to order a file from across the country and wait for its arrival.
Tom Temin: And the bigger picture here is that the economy is deprived of productive people that want to be in the United States for all the right reasons, to be productive. So therefore, there’s an economic cost to this, as well as a cost of somehow the failure to be able to diversify the nation with talent that wants to be here from all over the world.
Steve Plastrik: Absolutely. And one of the changes that we’ve seen over the course of the pandemic and the last few years is as the U.S. immigration system has become more difficult to navigate and more restrictive in many ways. There’s been a loss of competitiveness to other countries in particular, Canada, and candidates who are well qualified and waiting for a green card to become available to them in the United States have other opportunities outside the United States that they might want to take advantage of just to have that peace of mind of knowing that they’re on the right track.
Tom Temin: And do you ever talk to former colleagues at USCIS and they say, “Oy, you Steven, you can’t believe what it’s like here!”
Steve Plastrik: I do keep in touch with former colleagues. But the good news is that overall, it seems like they have been much more supported under this administration, to be candid. And also it’s encouraging to see things moving in a positive direction. And I feel that both in my own interactions with the government and also the interactions with my former colleagues.
Tom Temin: Steven Plastrik is a senior attorney at Berry Appleman & Leiden, and former associate counsel at USCIS. Thanks so much for joining me.
Steve Plastrik: Thank you for having me, Tom.