2021 AILA Conference Day 2 Session 3: Open Forum With USCIS

Hi everyone, this is day two session three: USCIS open forum. All the big shots that we invited to come to this event to speak on what’s going on inside USCIS, well they all came. This was very much like a honeymoon meeting, as well as a counseling meeting because all the frustration and anger that we have as attorneys dealing with all the backlogs, we got to vent and ask, ‘Well, what are we gonna do about it?’ It’s a terrific forum, let’s get started.

[Tsang Intro Splash]

[0:31] The single biggest takeaway from this forum is how heavily they’re going to push for electronic filing, online filing, to make the process more efficient, right? So of course, they are. They’ve been doing that for the past 15-20 years with myUSCIS, with ELIS, with online filing, but the thing is that they’re actually gonna do a lot more. They said they’re gonna push for 100% electronic filing, and presumably for all applications. That will be remarkable because right now we’re still doing a lot of paper filing for a lot of cases. Only a sliver of immigration applications (non-immigrant and immigrant) are available online, so it’s not even available. And with those that are available online, most people, I want to say, don’t do the online filing. They still choose to do the paper filing because they feel like it’s more secure, because they get the FedEx receipt, all of the reasons stated above, they think it’s more reliable. And so pushing that 100% electronic filing, put everything in the cloud, that will definitely make things a lot more efficient. 

[1:36] But what about the cases that are in backlog, right? So AILA has been constantly asking, what about the cases that have been around for two years or three years? What about the cases that have been denied wrongfully and now you do a motion to reopen? Are you gonna create a task force to deal with the backlog? And the answer is, it’s not so easy. We are just dealing with the ones that are all the way in the back of the line, trying to get through those first because it is the most urgent.

USCIS did mention a lot of hopeful things like expanding premium processing to 765 work permits. Right, so I know I have a case, an L2 work permit, it’s been pending for like six months to eight months now. If you’re hearing this, USCIS, please adjudicate it. It’s way too long for somebody to wait for a work permit so that they can work. They’ve been working and now because it expired, they have to renew it and they’re waiting that long, and it’s just so painful. And I mean, imagine, it’s like getting forced laid off for six months or eight months without any benefits. So allowing premium processing so that when you pay that additional application fee, your app, your work permit could be adjudicated within two weeks, which is a very reasonable time. Most people could take PTO for two weeks and then you get your new work permit and then you can start working again. That will be awesome. So expanding premium processing to a lot of different applications would be great.

[2:52] Why they didn’t do that earlier? Probably because they didn’t have enough staff and so maybe this is one of the silver lining to the chaos that happened with USCIS a few years ago, having doubled the amount of staff, training them for field interviews. Because adding a new requirement for all employment-based applications to have to go through interview, well now what do you do with all these staff? Are you gonna fire all these USCIS government officials? Well then you’re gonna be in a lot of lawsuit, and the government typically doesn’t do that. What do you do with all these extra people? Well now why don’t we expand premium processing so that more people, should they choose, pay a little bit more and then their application gets adjudicated a little faster? Well, that’s a win-win, so silver lining. Bing!

[3:37] Another breaking news is allowing e-requests for rescheduling biometrics. So this is something that we covered in the last episode, but imagine this: you file for a re-entry permit, and because you can’t wait the two months, three months to get the biometrics, the fingerprinting application, you fly out of the country, and then you have to fly into the country again to get fingerprinted, but because of COVID, it’s absolutely impossible. Well, let’s say you get your appointment, and you’re supposed to come back next week to get fingerprinted. You can’t buy a ticket, ticket’s too expensive for whatever reason, you can’t fly back, you have to reschedule the biometrics appointment. Do you know how complicated it is to reschedule a biometrics appointment now? In the prior episode that we did, all the top-notch immigration attorneys were saying, if at all possible, do not reschedule. It is absolutely insane. In our office, well, we do it, but it’s so painful, and we’re begging our clients to just fly here if at all possible, but some, they can’t.

[4:39] This is what we have to do to reschedule biometrics right now. We call USCIS, right? We wait hours to get to a tier two officer, then they say, “Okay, we’ll put you in the queue, we’ll call you back within the next 14 days. Sometime. We don’t know when.” And then if you think calling AT&T or Verizon, you get put on hold for a couple of hours and they call you back in midnight, it’s painful. Imagine waiting 14 days, right? And then sometimes they call you back, and then you don’t pick up within the first two rings, they cancel it, and then you have to restart the process again. So sometimes you, and by God, if you missed the biometrics appointment because you couldn’t get a callback, well then your biometrics get cancelled, your client has to fly back to refile a second re-entry permit. That’s a nightmare.

So that’s the process right now: the person will, USCIS officer will call you back, and then reschedule an appointment for you. But this rescheduled appointment can’t be over 30 days, so if your client can’t fly back for three months, you have to do this three times, and god forbid the client did this application by themselves because if they did it by themselves and they’re out of the country, well, you are not the attorney on record so you can’t do it for them, and when you do it, they have to be on the phone.

[5:54] Imagine this, right? We are calling USCIS, they call us back, we’re like, “Hold on, we need to link in our client from Shanghai. It’s right now 3 a.m. in the morning.” Call, oh they didn’t pick up. USCIS says, “sorry do it again later,” and then they hang up. So my god, right? So if at all possible, USCIS ruling out the e-request, being able to do it online, saying, simply for urgent reasons of A, B, and C, I cannot make this appointment, please reschedule it a month from now, maybe even pay a 10-20 fee, it doesn’t matter, but it makes it so much better. This will be a game changer for so many people around the world.

[6:32] The next thing on the agenda was, of course, the order for restoring faith in our legal immigration system, strengthening the integration and inclusion efforts for our new Americans. Under this new program, there’s going to be grants, there’s fee waivers, there’s programs to integrate new Americans into our society, so it’s going to be a lot of fun.

Then the forum went on to discuss all the key problems that they’re facing, and AILA was presenting them, such as when we file an application and we need to talk to a USCIS officer, maybe to find out a status or provide a key update, well, USCIS will only talk to the attorney. They won’t talk to the staff, they won’t talk to agents, and that is causing a big problem because some law offices represent thousands and thousands of cases. How is it possible that an attorney’s gonna talk to USCIS for every single one of these, right? But you know USCIS understands that’s a problem, but they’re also trying to combat fraud.

And so a lot of the issues is how do you work out these specific problems, and that really brings us to the big picture of this particular problem, right? USCIS is trying to administer justice, trying to catch fraud, and because these aren’t just simple applications, if it is done fraudulently, then foreign aliens will be able to come here, get a green card, get a U.S citizenship, and be able to vote and be able to get benefits from the government. And so in the past few years, USCIS, instead of a benefits center, they’re trying to administer and trying to catch fraud, right? And so it’s more of a deterrent center, so they have to have all of these precautions in place. It’s not about just making things more efficient, but making it right.

[8:15] On top of that, there’s technological barriers and problems in place. If you put everything on the cloud, and we know how insecure the cloud is, well then now you have hundreds of thousands of people’s applications all there with their social security number, with everything, and if that gets hacked, well that’s gonna cause a lot of problems for the government, doesn’t it? And of course, every government agency feels the same way, right? If you’re a social security office and you get hacked, that’s a big problem. But USCIS is a little bit more vulnerable in that sense because they use so many contractors. And yes, I understand they’re already trying to eliminate different contractors, for example, when you’re printing out work permit cards, where you’re printing out work permits, before they’re using contractors and now they’re doing it themselves, which is not the most efficient thing to do because the government, you’re not good at printing things, that’s not what you’re expertise is. Adjudicate paper work, that’s what you’re trained to do, but when you have to have all of that yourself, but it also prevents fraud, right? Because if the contractor leaks out this particular info, then that’s going to be a big problem.

[9:20] And just like any company going from paper to online to digitalizing everything, scanning all the millions and millions of files to the cloud and securing it for the backlog cases and the current cases, that’s extremely difficult. And how do you roll out new programs so people can apply and qualify?

[9:41] And perhaps the biggest complication is the constant change in policy. It was just so cool seeing the expressions on these officers because a lot of these, these are career USCIS officers, they’ve been there for a long time, 10-20 years, they’re now chief of staff, they’re now the directors of USCIS, they’ve seen thousands and thousands of cases and they’ve trained thousands and thousands of agents, but knowing that every few years a different priority comes up and they have to change the entire agency to fulfill that directive, that’s pretty crazy, right? Imagine you have to clean your house so that it’s completely spotless, and then halfway through cleaning, suddenly a new directive comes in and says, “Nope, instead of a clean house, we want a Victorian-style house.” So now put everything back out, and then as you’re doing that suddenly it’s like, “No, we want to go minimalism now,” and so now you have to reach… So constantly re-changing.

And I’m not just talking about new political directions, but also new technological directions, the invention of Dropbox, new enemies that the country is facing, so many new problems that these chief of staff, these directors at USCIS have to face. And what do they do with the backlog that’s already in place, and the hundreds of thousands of cases pouring in? It is an extremely difficult job, but seeing all the USCIS officers there, the peace, the composure that they have, the hopefulness and the optimism they have in being able to ride through this new wave and change and make the agency better is very hopeful. 

[11:14] So for what it’s worth, here’s a little suggestion from me and some of my colleagues. We think that if USCIS acquires a small, little company, this could greatly help them process and achieve this kind of efficiency. Just like in the private sector when we need to do something, we don’t necessarily reinvent the wheel and do everything ourselves, but if we just acquire a small company that can be of great help. I know USCIS is trying to create this online system that everybody can fill out their application, submit the documents, and then submit it, and then now everything goes through. But instead of creating everything yourself, it’s just that complicated. There are so many companies that already exist that have been competing with each other to create these form-filled systems that attorneys use, right, to fill out everything, submit documents, and then everything gets printed out very neatly and perfectly. Well, if USCIS just has one of those systems, just one of those companies, there’s a handful to choose from, then it can make the process that much more efficient.

[12:12] And then leveraging AI technology, so the simplest of the cases when you sweep through it, if it’s all good, just approve it, maybe on a conditional basis, and then the 20% that’s somewhat complicated, red flag it and then have the officers review those cases. And that way it will make things so much faster instead of preparing everything, filing it, and having a contractor get it and scan everything in and if it’s incorrect, rejecting it, and then refunding the money and having an agent review every single thing. This way it will reduce the workload by 50% or more, reduce the cost, and there’s just so many benefits to this to make things more efficient. Maybe just tackle the most common problems and that might save the agency 80% of the processing time. And then the agency can dedicate their time to 20% that’s actually a big problem. Anyways, it’s a small suggestion, I know it’s easier said than done, but for what it’s worth, there you go.And then the agency can focus their resources on the 20% that’s actually super complicated. Now, saying 20% is actually still hundreds of thousands of cases that are like that, but still focusing the attention on those and adjudicating those well so that you don’t get sued in the backend because your denial decision was terribly written because you only had five minutes to write it, right? So I think that would be one of the key solutions, and you know, Marie Kondo up the entire situation with the backlog, you know, if it doesn’t spark joy, then let’s fix it, let’s automate it, and let’s make it better. I’m sure there are tons of people who are willing to dive in to solve this problem, programmers, people in the private industry, myself included, and all of AILA. If you have any questions, USCIS, to tackle this problem, if it’s not sparking joy, feel free to reach out. We would love to jump on a call and solve this problem together.

[13:58] One of the key takeaways from watching this forum is just how good of a relationship AILA has with USCIS now. A lot of the recommendations that are being implemented every single day this past week were recommended by AILA. We saw the problems in the situation and we brought it to USCIS’ attention, and they immediately turned around and granted it. That’s amazing, right? And that’s how the private sector and the government sector should work. In the past few years, some of the agency relationships have just completely deteriorated, and that was a pretty big problem because when there’s miscommunication, then the government officials don’t know exactly what the problems are on the ground level. But being able to make these good policy decisions was really helpful.

[14:40] And that’s it for today’s open forum session with USCIS. It was very much like a honeymoon session where we’re all very hopeful for all the changes that are going to come about. We are finally glad that things are back to normal, but it was also like a counseling session, right? All the AILA attorneys, myself included, we got to vent a little on all the problems that we see in the relationship, and like a good spouse, they were a good listener, they heard the problems, they acknowledged our pain, it is legitimate, and they are addressing the issues at hand.

So with that, we’ll go on to the next session.