USCIS’ Role in the Visa Process

VIA USCIS

Introduction

Chairwoman
Lofgren, Ranking Member King, Members of the Subcommittee, thank you
for the opportunity to appear before you today to discuss the role of
U.S. Citizenship and Immigration Services (USCIS) in the visa process,
particularly USCIS and Department of State (DOS) efforts to maximize
visa issuance in accordance with the law.  I am accompanied today by
Don Neufeld, Acting Associate Director for Domestic Operations.

In recent years, over 1 million people became Lawful Permanent Residents of the United States
(LPRs).  Under the law there are a variety of different categories and
means through which a person may become eligible for permanent
residence.  A substantial number of these categories have numerical
limitations – annual caps on how many people can immigrate.  There are
other aspects to these caps as well, such as limitations per country.

While
there are many different categories and means by which a person may
become a permanent resident, there are two ways a person is actually
granted permanent residence.  The first is by being issued an immigrant
visa overseas from DOS, and then being admitted to the United States
with that visa.  The second is by being granted Adjustment of Status by
USCIS or the Executive Office of Immigration Review (EOIR).[1]   The adjustment option is limited to people already in the United States when they become eligible for an immigrant visa or otherwise become eligible for adjustment of status.

The
Department of State administers the provisions of the Immigration and
Nationality Act (INA) that relate to the numerical limits on immigrant
visa issuance.  However, DOS and USCIS must work closely in this
respect because visas issued by DOS and adjustment of status granted by
USCIS draw down from the same pool of limited numbers.  Close and
careful coordination ensures that annual limitations are not exceeded,
and also helps us jointly strive to use all available visa numbers when
there is sufficient demand.

According to the
Office of Immigration Statistics March 2008 Annual Flow Report, a total
of 1,052,415 persons became LPRs in 2007.   The majority of the new
permanent residents (59 percent) were already living in the United States when
they adjusted status to permanent residence.  Two-thirds of all new
LPRs were granted permanent residence based on a qualifying family
relationship with a U.S. citizen or LPR.  The leading countries of birth for new permanent residents were Mexico (14 percent), China (7 percent), and the Philippines (7 percent). 

In
concert with DOS, USCIS has made significant changes in recent years to
maximize the use of the limited number of visas available annually. 
These changes include increased staffing, enhanced analytical capacity,
more detailed and strategic management of monthly production, and close
partnership with DOS to share greater information. This enhanced
information exchange assists DOS in better managing visa allocations
through the monthly visa bulletin and improves USCIS’ ability to target
production for maximum result.

Background

A  Lawful Permanent Resident is an individual who has been granted permanent resident status in the United States.
These residents are given Permanent Resident Cards, commonly called
“green cards”, and may live and work permanently anywhere in the United
States. They may own property, attend schools, join the U.S. military, and apply to become U.S. citizens.

There are five general categories of persons able to immigrate to the United States.  They are Immediate Relatives of a U.S.
citizen, Family-sponsored immigrants, Employment-based immigrants,
Diversity immigrants and those granted permanent residence after
holding refugee or asylum status in the United States. 
Congress has established annual limits on the number of aliens who can
become LPRs through the family sponsored, employment-based and
diversity categories.

The family-sponsored category consists of four preferences –

• Unmarried sons and daughters of U.S. citizens and their children;
• Spouses, children, and unmarried sons and daughters of permanent residents and their children;
• Married sons and daughters of U.S. citizens and their spouses and children; and
• Brothers and sisters of US citizens aged 21 and over, and their spouses and children. 

A U.S.
citizen or LPR seeking to sponsor an alien on the basis of their family
relationship will file a visa petition (Form I-130) with USCIS. 
Section 201 of the Immigration and Nationality Act (INA) sets a minimum
annual family-sponsored preference limit of 226,000.  In recent years,
because of the large number of Immediate Relatives, the
family-sponsored preference limit has remained at this statutory floor.

Employment-based petitions are filed by U.S. companies,
organizations and individuals in order to employee foreign workers in
accordance with the INA.    These workers may be nonimmigrants within
the United States
or people in other countries willing to immigrate for employment. A
prospective employer will file an employment-based visa petition (Form
I-140) with USCIS to sponsor the alien as an immigrant worker.  The
annual limit for employment-based visas is 140,000 plus any
family-based preference visas that went unused in the prior fiscal
year. In some recent years, such as 2005-07, the number of
employment-based visas authorized and issued has been substantially
higher than 140,000 because of the effect of “recapture” statutes. 
These visas may be issued to the immigrant worker and his or her spouse
and children that are not already U.S. citizens or LPRs. 

Once
USCIS is satisfied that the qualifying relationship exists and the
I-130 or I-140 is approved, an individual may apply for a visa with DOS
overseas or may apply to adjust status in the United States with USCIS or EOIR if a visa is immediately available. 

The following table indicates approvals for all adjustment of status applications over the past few years. 

USCIS Operations

By
statute, an application for adjustment of status can only be filed if
an immigrant visa is immediately available to the applicant.  USCIS
regulations define a visa to be immediately available if the priority
date of the underlying visa petition is earlier than the cut-off date
indicated for the appropriate visa category on the current DOS monthly
visa bulletin.  Because of these requirements, USCIS is unable to
accept an application and begin the adjudication process in advance of
visa availability.  It is also unable to limit the number of
applications accepted in a given month to the actual number of visas
available.  Rather, as many as qualify can file for adjustment of
status during the window indicated on the visa bulletin.  This can lead
to a far greater number of applications than visas available.  In such
cases, USCIS adjudicates the application and grants interim benefits,
such as work authorization and permission to travel (advance parole),
until a visa number is available.  Currently, the wait for some
adjustment of status applicants in the employment categories can be
measured in years.

Over the past few years,
USCIS has built up an inventory of applications for some visa
categories that cannot now be adjudicated because the number of filings
exceeded the number of visas that were actually available.  It also has
built up a backlog of applications for some visa categories where
competing adjudication priorities have prevented the timely completion
of cases, even though visas are immediately available.

According
to DOS, applicants for adjustment of status currently account for 25%
of annual family-based visa allocations and 85% of annual
employment-based visa allocations.  This has varied from year to year
as different factors have influenced USCIS production.  For instance,
the largest gaps in recent visa number usage occurred in Fiscal Year
(FY) 2002 and 2003, which coincided with a significant drop in
adjustment of status processing as USCIS adapted to changes to increase
security screening post 9/11.  Production rose in FY 2006 due to the
culmination of backlog elimination efforts and the infusion of
appropriated funds.  While production slowed in FY 07 after completing
the prior backlog reduction effort and subsequent temporary staffing
reductions, production is up substantially in FY 2008.  For the first
half of FY 2008, increased productivity through operational and
staffing enhancements has resulted in increased visa usage of 16.6%
over the same period last year.

USCIS has a
fee structure and surge response plan that is financing the capacity
enhancements needed to both eliminate the current adjustment of status
backlog and to sustain a higher capacity for timely adjudications going
forward.

To maximize visa number usage while
working off its backlog, USCIS has adopted a production strategy that
focuses on completing cases where visas are immediately available and
on working cases to the point just short of approval (pre-adjudication)
where visas will be available in the coming months.  Pre-adjudication
includes completing all required background checks and resolving all
eligibility issues except for visa availability.  This allows for
immediate approval and visa number allocation as visas become available
for pre-adjudicated cases.

Collaboration with DOS

USCIS
works with DOS more closely than ever to exchange information that is
critical for managing visa allocation and for targeting future
production efforts.  We are now in weekly contact with the Chief of
DOS’s Visa Unit to communicate current inventories per country and
preference class to better determine each month’s visa bulletin.  DOS
provides regular updates to USCIS on past visa number usage and
remaining numeric allocations per country and preference class.  DOS
also shares its forecast for priority date movement in upcoming visa
bulletins so that USCIS can adjust production in advance for maximum
visa number usage.

USCIS and DOS are also
working together on a plan to forward all approved family-based visa
petitions to DOS, including those where the petitioner indicates the
beneficiary will apply for adjustment of status in the United States. 
 This will enhance the ability of DOS to accurately forecast demand for
visa numbers and more precisely manage the establishment of priority
dates to meter the intake of applications for adjustment of status to
match visa availability. 

Conclusion

Though we still have challenges to overcome, USCIS is currently showing improvements as a result of process improvements. As of April 25, 2008,
USCIS had adjudicated over 65 percent of its FY 2008 target for
employment-based visas.    With five months to go in FY 2008, this is a
strong start.    We plan to continue implementing process improvements
and new reporting mechanisms for managing these important applications. 

Over
the years, USCIS and DOS have strived to work in concert with respect
to the Visa Bulletin process.   After the events of the Summer of 2007,
this year, we have built on that foundation and are better equipped to
accurately assess and effectively manage the process to ensure that all
available visa numbers are utilized.   With five months left in FY 2008
year, we are confident this partnership between USCIS and DOS will
provide the blueprint for continued success in managing visa
allocations.

I look forward to updating you on our continued progress and am pleased to answer any questions that you may have at this time.

Related Files

Testimony (130KB PDF)