Public Comment by the Federation of American Scientists (FAS) Submitted to the Department of Homeland Security (DHS)

By and May 19, 2021

The Federation of American Scientists (FAS) submits this comment in response to the request for public input from the Department of Homeland Security (DHS), which is “seeking comments from the public on how U.S. Citizenship and Immigration Services (USCIS) can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits.”

The Technology and Innovation Initiative at FAS is focused on the intersection of immigration policy and emerging technologies in advancing the nation’s national security and economic growth. Talent is one of the scarcest resources in the global race for predominance in artificial intelligence (AI) and other technologies, yet the United States risks squandering this advantage. Despite the high proportion of foreign-born students and professors in U.S. science and engineering departments, the vast majority of whom wish to stay in the United States, much of the nation’s resident technology talent does not have a clear path to U.S. citizenship.

Addressing the Backlog Crisis

Administrative improvements are urgently required to upgrade all elements of the U.S. legal immigration system for the 21st century, including employment-based immigration, family-based immigration, humanitarian immigration, and naturalization.

In recent years, processing times have skyrocketed at USCIS, leading to onerous wait times for everything from work permits to green cards to the ultimate privilege of U.S. citizenship.

Average processing time by U.S. Citizenship and Immigration Services for key forms (months)
Form Purpose FY 2014 FY 2015 FY 2016 FY 2017 FY 2018 FY 2019 FY 2020   Change since 2014
I-130 Green card sponsorship by immediate relative 6.8 6.1 6.0 7.7 9.7 10.6 10.3 51.5%
I-131 Travel permit 2.1 2.3 2.3 3.0 3.9 4.5 4.7 123.8%
I-140 Green card sponsorship by employer 2.9 5.1 5.7 6.9 7.8 5.3 6.0 106.9%
I-485 Green card application based on employment 4.5 6.5 6.8 8.1 11.1 12.8 14.4 220.0%
I-485 Green card application based on family 5.7 6.6 6.8 8.4 11.1 11.1 9.9 73.7%
I-751 Final step for green card based on marriage (“removal of conditions”) 5.7 7.4 9.1 11.8 16.1 15.5 13.9 143.9%
I-765 Work permit 2.1 2.4 2.6 3.1 4.2 4.5 4.4 109.5%
I-914 T visas for victims of trafficking 5.8 6.4 7.9 9.0 11.4 16.1 16.3 181.0%
I-918 U visas for victims of crime, including domestic abuse 5.0 11.4 22.1 32.1 40.6 44.5 48.8 876.0%
N-400 Citizenship application 5.2 5.8 5.6 8.1 10.3 9.9 9.3 78.8%


Worse still, the average numbers above conceal even more dire wait times that vary by region and by immigration category. The median processing time for a U.S. citizenship application far exceeds one year in many parts of the country, and some applicants have been kept waiting for over two years, despite meeting all eligibility requirements.

Wait times for the spouses of H-1B workers, most of whom are highly-skilled professionals in their own right, now regularly exceed two years, leading to loss of immigration status and a flight of talent from the United States.

By the end of Fiscal Year (FY) 2020 (the latest date for which agency data is currently available to the public), many of the most important services provided by USCIS had become burdened by extraordinary backlogs.

Stated simply, the entire U.S. legal immigration system is in a state of crisis, and without concerted policy and operational improvements, global talent will increasingly flow to other, more welcoming countries.

Number of pending applications (i.e. backlog) at U.S. Citizenship and Immigration Services for key form
Form Purpose FY 2016 FY 2017 FY 2018 FY 2019 FY 2020   Change from FY16-20
I-130 Green card sponsorship by immediate relative 938,577 1,289,088 1,520,249 1,564,880 1,472,788 56.9%
I-485 Green card application based on family 247,062 314,939 372,185 322,562 357,639 44.8%
I-765 Work permit 533,130 649,428 580,765 637,811 648,985 21.7%
I-918 U visas for victims of crime, including domestic abuse 150,561 190,361 229,230 255,495 270,074 79.4%
N-400 Citizenship application 520,589 728,301 734,817 644,121 938,154 80.2%
I-539 Extension or change of temporary status (e.g. spouses of H-1B workers) 59,330 87,848 95,938 97,201 349,631 489.3%


Since January 2021, USCIS has taken several essential steps to address this backlog crisis, including:

USCIS must now go further, including by:

  • Reinstating waivers in lieu of mandatory interviews for employment-based green card applicants (some 122,000 per year), for family members of refugees and asylees applying for a green card (some 46,000 per year), and for recently married couples who have already obtained a green card (over 166,000 per year);
  • Finalizing a new fee rule that raises sufficient revenue for USCIS without posing undue burdens on the users with the least ability to pay higher fees; and
  • Instituting remote interviews and oath ceremonies for naturalization applicants. Nearly every other business, nonprofit, and government entity has adapted to the COVID-19 pandemic by using virtual meeting technology. Indeed, it is currently possible to appear in a federal court hearing or be evicted from one’s home through an online videoconference. The Immigrant Legal Resource Center (ILRC) has comprehensively demonstrated such measures would not run afoul of statutory, regulatory, and logistical hurdles faced by USCIS. Indeed, if USCIS can currently conduct video-facilitated asylum interviews in an office environment, shouldn’t naturalization applicants and USCIS officers be able to do the same thing from the safety of their own respective homes?

More information and recommendations can be found in Doug Rand’s initial testimony and supplemental testimony before the House Judiciary Committee’s Immigration and Naturalization Subcommittee (“Oversight of U.S. Citizenship and Immigration Services”) held on July 29, 2020, both of which are attached to this comment.

Streamlining Immigration for AI Professionals

New applications of artificial intelligence (AI) are expanding rapidly, while countries all over the world are fiercely competing for the talent necessary to take advantage of these increasingly consequential technologies. The United States is still one of the top destinations for AI students and professionals, but it may not stay that way for long. Many countries, such as Canada, the United Kingdom, and China, among others, are adapting their immigration systems to make it easier for AI experts to study, work, and stay permanently.

One of the biggest barriers to global AI talent recruitment is the sheer time required to obtain a green card. In addition, current guidance for USCIS adjudicators makes no reference to particular technology areas, and it is not clear how AI-specific achievements fit into the requirements for various immigration options. USCIS can provide clearer guideposts for AI professionals seeking to demonstrate their eligibility for employment-based permanent residency pathways, such as EB-1s, EB-2s with National Interest Waiver, and EB-3s with Schedule A designation.

More information and recommendations can be found in our report, “Winning the Global Race for Artificial Intelligence Expertise: How the Executive Branch Can Streamline U.S. Immigration Options for AI Talent,” N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021), which is also attached to this comment.

Welcoming Immigrant Entrepreneurs

The International Entrepreneur Rule was finalized at the end of the Obama Administration as a way for America to attract entrepreneurs to launch and grow innovative startups in the United States. It is an agency regulation that was developed by DHS, rooted in the DHS Secretary’s statutory authority to grant parole on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.” During the Trump Administration, DHS attempted to rescind the rule—and though the rule ultimately survived, its precarious situation over the last four years has dissuaded all but the most iron-willed entrepreneurs from utilizing it.

On May 10, 2021, USCIS announced that it will revitalize the International Entrepreneur Rule by withdrawing the Trump administration’s proposal to eliminate it, and by planning “information sessions and other outreach activities to ensure foreign entrepreneurs are aware of this opportunity and how to pursue it.”

We commend the Biden Administration for taking this step to prioritize the economic growth and innovation potential of international entrepreneurs in the United States. In addition to these actions, USCIS should:

  • Improve marketing and outreach to make it clear to practitioners and stakeholders that the International Entrepreneur Rule is available and workable.
  • Implement non-regulatory changes such as improving program operations and issuing updated policy guidance to make evidentiary standards clearer.
  • Ultimately solidify the program through new regulations, such as adding a more durable qualified investor status.

More information and recommendations can be found in our report, co-authored with Caleb Watney, “Long Live the International Entrepreneur Rule: An Opportunity to Boost Jobs and Economic Growth is Hiding in Plain Sight,” Progressive Policy Institute (2021), which is also attached to this comment.

Expanding Premium Processing

During the previous Administration, USCIS increased its staffing level by almost 20 percent while also increasing the time and cost burden of processing applications. This inefficiency was leading the agency down the path to insolvency, and when the COVID-19 pandemic hit, this exacerbated the already worsening financial situation for USCIS.

To ensure the continued functioning of USCIS, the FY 2021 Continuing Appropriations Act gave the agency the authority to raise the premium processing fee for most I-140 and I-129 petitions, and to newly extend premium processing to:

  • Employment-based green card petitions for multinational executives (Form I-140 for EB-1C);
  • Petitions for second preference employment-based green cards (EB-2) with National Interest Waivers (NIWs);
  • Petitions for change or extension of nonimmigrant status (Form I-539); and
  • Petitions for employment authorization documents (Form I-765).

The law also gave USCIS the power to issue new regulations to extend premium processing to “any other immigration benefit type that the Secretary [of Homeland Security] deems appropriate.” While USCIS did raise the premium processing fee for most I-140 and I-129 petitions, it has yet to extend premium processing to any of the other categories mentioned in the statute.

We have estimated that if USCIS did extend premium processing to just the above categories specifically authorized by Congress, the agency could increase its revenue by an additional $385–626 million per year. This revenue would go a long way toward ensuring that USCIS not only remains solvent, but is fully capable of expeditiously processing the paperwork of the millions of users—including U.S. citizens and employers—seeking to successfully navigate the legal immigration system.

More information and recommendations can be found in our report, “Congress Just Authorized USCIS to Raise Over $1 Billion in Fees from Business Users,” Federation of American Scientists (2020), which is also attached to this comment.

Thank you for your attention to these important matters.



Doug Rand
Senior Fellow
Director, Technology and Innovation Initiative
Federation of American Scientists

Lindsay Milliken
Research Assistant
Federation of American Scientists