Visa Interview Waivers after COVID

Summary

The COVID-19 pandemic severely impaired State Department (DOS) processing capacity by interrupting operations at U.S. consulates and foreign posts, slashing revenue for consular services through the resultant collapse in collected fees, and straining preexisting staffing challenges. To respond to diminished capacity, the State Department used its authority to waive in-person interviews to efficiently process visas with the resources it had available, while protecting national security. Even after COVID-19 ends as an official public health emergency, its effects on visa processing capacity will  linger. In 2022, 48 percent of nonimmigrant visas were issued with an interview waiver, which was a vital component in rejuvenating the global talent mobility. Current visa interview waiver policies should remain  in place until U.S. visa processing fully rebounds and should become a permanent  feature of the State Department’s ongoing efforts to develop country-by-country consular policies that mitigate risk and avoid backlogs. 

Expanded use of interview waivers because of diminished processing capacity

Congress authorized interview waivers to allow the State Department to focus its scarce resources on potential threats. The State Department originally had complete discretion about who must make a “personal appearance” and who may be waived under the Immigration and Nationality Act of 1952.1 Before the September 11th attacks, personal appearance waivers were relatively common,2 but post-9/11 policy guidance, initially codified in regulation in 2003, restricted the use of waivers to certain circumstances.3 Congress codified these restrictions in the Intelligence Reform and Terrorism Prevention Act of 2004, which added an in-person interview requirement for all applicants between 14 and 79 except under particular circumstances.4 Namely, DOS can offer waivers for the in-person interview requirement to applicants renewing visas (who have already had interviews) and for designated low-risk applicants.5 

The 2004 State Department waiver authorities that Congress left to the State Department contain three components. First, individual consular officers may waive in-person interviews in certain cases when the applicant “presents no national security concerns requiring an interview.” Second, the Secretary of State may waive interviews when it is in the national interest. Third, the Deputy Assistant Secretary for Visa Services has the authority to waive interviews when it is “necessary as a result of unusual or emergent circumstances.”6 

In the wake of COVID-19, the State Department has strategically used these waivers to address growing backlogs. After a temporary suspension of visa processing at the beginning of the pandemic, DOS resumed limited visa processing in July 2020. However, limited capacity led to significant backlogs and wait times. A number of factors have contributed to lengthy backlogs: 

  1. Interrupted operations at consulates and embassies: Many consular offices shut down temporarily or scaled back their services during peak pandemic times due to lockdown measures and health risks. This led to delays in application processes that spiraled into massive backlogs when normal functionality resumed.
  2. Diminished revenue: As a fee-based agency, consular services lost the revenue associated with normal operations. Cuts to staff and resources left the agency with higher caseloads per officer. 
  3. Limited resources before pandemic: Even before COVID-19, US consulates and embassies had inadequate resources to efficiently handle significant processing demands. This problem was exacerbated by pandemic-related disruptions.
  4. Increased application volumes: Global travel resumed as vaccines became widely available. Families reuniting after extended time apart was a primary contributor to rising visa application volumes.  

The Department of State’s current policies focus on low-risk applicants, namely individuals who: have previously traveled to the United States; have biometrics on file for full screening and vetting; and either are the beneficiary of an approved petition from DHS confirming their eligibility for a visa classification or have already received a Certificate of Eligibility for a visa classification by an institution designated by DOS. 

On March 26, 2020, Secretary of State Pompeo announced that the DOS would expand the availability of waivers to certain H-2 applicants, marking the first expansion of visa waivers in response to reduced processing capacity.  In August 2020, Pompeo announced that applicants seeking a visa in the same category they previously held would be allowed to get an interview waiver if their visa expired in the last 24 months. Before this, the expiration period for an interview waiver was only 12 months. In December 2020, just two days before this policy was set to expire, DOS extended it through the end of March 2021. In March, the expiration period was doubled again, from 24 months to 48 months and the policy extended through December 31, 2021. In September of 2021, DOS also approved waivers through the remainder of 2021 for applicants of F, M, and academic J visas from Visa Waiver Program countries who were previously issued a visa.

In December 2021, DOS extended its then-existing policies (with some minor modifications) through December 2022. It also expanded its interview waiver policies by making first-time applicants for H-1, H-3, H-4, L, O, P, and Q visas — all classifications requiring petition adjudication by DHS — eligible for waivers if they are nationals of countries participating in the Visa Waiver Program and are a previous traveler to the United States through the Electronic System for Travel Authorization (ESTA). Applicants for H-1, H-3, H-4, L, O, P, and Q visas are also eligible for waivers if they have previously been issued any type of visa (meaning their  biometric data was on file with DOS), have never been refused a visa (unless the refusal was overcome or waived), and provided they have no apparent or potential ineligibility. Applicants who have been issued a valid Certificate of Eligibility for classification as an F-1 student or an exchange visitor on an academic J-1 program may also be issued a visa without an interview.  Moreover, the interview waiver policy that individuals renewing a visa in the same category as a visa that expired in the preceding 48 months may be eligible for issuance without an interview was announced as a standing policy of the State Department, and added to the department’s Foreign Affairs Manual for consular officers.  In December 2022, DOS announced another extension of these policies, which are set to expire at the end of 2023. 

In April 2023, President Biden signed a resolution ending the state of national emergency initiated by the pandemic. The public health emergency expires on May 11, 2023. 

As policymakers consider the future of interview waivers beyond the official COVID emergency, they should note that new waiver policies were a response to a profound reduction in processing capacity rather than as a direct public health measure. Even with an expanded use of waivers, backlogs are still significant. The average wait time is estimated to be about 100 days—well above pre-pandemic waits.  Even though the public health emergency has ended, we must retain current policies on interview waivers as long as processing delays persist. 

Interview Waivers Have Been Highly Effective

Interview waivers have positively contributed to effective visa processing. Recent data show a decline in global wait times for various applicant types, including students, exchange visitors, temporary workers requiring DHS petition approval, and B-1/B-2 visitors.7 Moreover, interview waivers have had a minimal impact on overstay rates. 

It should be noted that waivers are not granted at the expense of national security or public safety. Robust screening and vetting protocols persist even when interviews are waived. Preserving the waiver mechanism can help strike a balance between robust screening and vetting measures and the  procedural workflows that are vital for efficiently managing backlog cases.  Waived applicants typically consist of low-risk profiles or those who have previously been granted visas after comprehensive background checks, who are then subjected to the same screening and vetting checks and reviews as interviewed applicants based on their biometrics already on file.  The ability of State’s consular posts to receive visa applications without an interview, but not mandating that posts do so for all available categories,allows consular officials to take into account country-specific conditions.  

As the State Department recently noted: “These interview waiver authorities have reduced visa appointment wait times at many embassies and consulates by freeing up in-person interview appointments for other applicants who require an interview. Nearly half of the almost seven million nonimmigrant visas the Department issued in Fiscal Year 2022 were adjudicated without an in-person interview. We are successfully lowering visa wait times worldwide, following closures during the pandemic, and making every effort to further reduce those wait times as quickly as possible, including for first-time tourist visa applicants. Embassies and consulates may still require an in-person interview on a case-by-case basis and dependent upon local conditions.”8

Given that about half of all nonimmigrant visas were issued last year without an interview, discontinuing interview waivers following the end of the public health emergency will create undue strain on an already understaffed  consular workforce and hamper global mobility just as academic, industrial, and government travel is returning to pre-pandemic levels. The workload that previously took care of almost half of successful visa applications will instead increase pressure on a system that is poorly equipped to service the growing post-pandemic demand.

Interview waivers do not jeopardize security

As the State Department explained in 2015, “interview waiver options do not represent a reduced scrutiny of applicants; rather, they are intended to enhance the security of the visa process by allowing State to focus more of its resources on potential threats.” 

First, expanded use of interview waivers as a result of the pandemic only applies to low-risk applicants. The waivers are subject to important guardrails to safeguard security. They are not available to any applicant who: has previously been denied a visa; is listed in the Consular Lookout and Support System (CLASS); requires a Security Advisory Opinion or State Department clearance; is applying from a country they are not a national or resident of; or who is applying from a country designated a state sponsor of terrorism. Furthermore, they cannot be a member of any group that poses a security threat, has historically had an above average rate of visa denials, or poses a substantial risk of visa fraud. 

Second, applicants eligible for interview waivers remain subject to the background checks and all screening and vetting required for all nonimmigrants, including name checks and biometric screening. 

Third, the waivers are discretionary. Consular officers always have the option to interview an  applicant if they doubt their credibility or have any other questions about their eligibility following standard screening procedures.

Interview waivers maximize the security afforded by DOS for a given level of processing capacity by allowing the department to deploy its resources where they are most needed.

Recommendations

Current interview waivers should be extended until at least 80% of non-immigrant visa applicants in categories requiring USCIS petition approval or sponsor-issued Certificates of Eligibility can schedule an interview within three weeks. Existing waivers should not be lifted unless this benchmark for visa processing can be maintained. In 2012, the president established this benchmark as a target for DOS with regard to business and tourist visas. By 2015, the Department successfully brought wait times down with the help of numerous policy changes, including the use of interview waivers. This benchmark provides a reasonable criterion to define unusual or emergent circumstances related to visa processing justifying waivers. 

Consular management controls should include required annual reporting by consular posts to the State Department’s Bureau of Consular Affairs on the use of interview waivers.  Consular posts typically conduct a handful of validation studies each year for Visa Services leadership in Consular Affairs.  Each consular post should be tasked with reporting: whether the post utilized interview waiver authorities, and the reasoning for when the authorities were employed or not, what efficiencies or hurdles were encountered; and how the targeted use of interview waivers at the individual post can mitigate risks by allowing consular officials to focus attention on country-specific conditions.

Congress should authorize expanded interview waivers beyond the emergent circumstances of reduced processing capacity and task DOS with piloting other policies that would institutionalize efficient visa processing. Waivers are justified under current authority by the unusual circumstance of reduced processing capacity but may be helpful even when processing capacity has rebounded. Congress can and should make clear that it intends the national interest authorities left to the Secretary of State be utilized for the purpose of keeping processing times down. Congress can also help DOS pilot remote interviews for those  lowest risk applicants that remain ineligible for interview waivers or in countries where interview waivers are not an appropriate response for country conditions. Combining interview waivers with remote interviewing authority would allow the State Department to better choose how to deploy its resources while also maintaining thorough screening and vetting through biometrics.  Institutionalizing more certain and predictable timing on visa applications would help ensure the U.S. is attractive to international talent that is key to keeping the country competitive.

Conclusion

Despite reported improvements in pandemic conditions, visa backlogs continue to pose significant challenges at U.S. diplomatic missions around the world. The State Department should be allowed to broadly and flexibly use consular resources to collect and review screening and vetting results and complete all processing requirements without scheduling interviews. This will allow the Department to offer more timely options for qualified individuals seeking entry into the country. Maintaining interview waivers after the official expiration of the COVID-19 health crisis allows experts to focus on essential cases requiring more in-depth scrutiny, thus bolstering the security of our immigration system.

Lifting COVID-related restrictions does not automatically imply that all embassies or consulates will be able to immediately manage pre-pandemic levels of visa applications. Adjusting staffing resources and infrastructure could take time, especially when considering additional constraints from dealing with limited operational capacities. In these cases, visa interview waivers can help alleviate undue stress on embassy operations while providing flexibility to consular officers.

State Department Must Urgently Update the Exchange Visitor Skills List To Safeguard American Interests

The J1 visa Exchange Visitor Program, a pivotal mechanism fostering global cultural exchange and dissemination of specialized knowledge, remains regrettably stagnant since its last renewal on April 30th, 2009, just about 14 years ago. The anachronistic nature of this scheme inadvertently undermines American interests, a phenomenon glaringly evidenced by the manner in which it impacts Chinese exchange students and investigators focusing on Science, Technology, Engineering, and Mathematics (STEM) disciplines.

The Exchange Visitor Skills List delineates fields embodying specialized knowledge and abilities deemed indispensable for a participant’s nation of origin’s advancement. As stipulated in Section 212(e) of the Immigration and Nationality Act, when a skill appears on the State Department’s list of skills (referred to as the “Skills List” hereon) necessary for the development of a particular country, exchange visitors must spend two years in their native country post-program completion. The conceptual foundation underpinning this rule is inherently valid—fostering learning and contributions to both the United States and countries of origin. However, the obsolescence afflicting this Skill List generates unforeseen ramifications that ultimately jeopardize national interests.

China has made tremendous progress in cultivating its STEM competencies over the past decade. Indeed, China now produces twice as many STEM graduates from Master’s programs and is projected to graduate twice as many STEM PhD holders than the United States by 2025. The Australian Strategic Policy Institute further reveals that China prevails internationally across 37 out of 44 vital technology sectors. Despite these prodigious advancements, archaic regulations continue to include computer science and numerous other STEM fields on the Skills List for China.

This oversight dictates that Chinese students drawn to American institutions find themselves subjected to the two-year home-country physical presence requirement upon program completion. As a result, they expend those critical two years following their education infusing newfound expertise into Chinese industries rather than substantially augmenting US research enterprises or corporations. 

Heeding this very predicament, Chinese governmental policies have commenced refusing waivers for students subjected to the aforementioned requirement—shrewdly exploiting America’s outmoded policies. 

Mitigating this quandary necessitates decisive action from our governance; revising the extant Exchange Visitor Skills List would rectify these disparities, enabling skilled international workers to collaborate more effectively with the United States. For instance, excising China’s STEM programs from the Skills list would guarantee equitable prospects for nascent global research endeavors within these paramount fields. National capabilities around the world are quickly evolving. Undertaking a regular, systematic, data-informed update would facilitate the United States’ ability to preserve its competitive advantage within vital industries while concurrently nurturing amicable international relations. 

The urgency of modernizing the Exchange Visitor Skills List cannot be overstated. By bringing this List up to date, we shall harness—with reciprocity—the ardor and intellect of gifted minds traversing borders while simultaneously defending and advancing American interests.

FAS Joins 35 Organizations calling on DHS to Make Changes to International Entrepreneur Parole

WASHINGTON, D.C. — Yesterday, the Federation of American Scientists joined 35 organizations and individuals from the immigration and startup communities in an open letter to Secretary of Homeland Security Alejandro Mayorkas calling on him to make procedural changes to International Entrepreneur Parole. “Over half of the billion-dollar startups launched in the United States were founded by immigrants—despite the incredibly challenging and outdated immigration system,” the authors wrote. “For the United States to stay competitive and remain attractive to talented individuals all over the world, it is vital that the IEP application process be as efficient and smooth as possible. It is currently our best option to bring innovative entrepreneurs to our country and allow those who are already here to stay.”

The letter recommends five changes to improve the efficacy of the International Entrepreneur Parole including developing feedback loops, creating avenues for premium processing, and refining the program through engagement with key stakeholders.

Read the full letter to Secretary Mayorkas below and here:

February 1, 2022

The Honorable Alejandro Mayorkas

Secretary of Homeland Security

Department of Homeland Security

Washington, DC 20528

RE: U.S. Innovation and Job Creation through International Entrepreneur Parole (IEP)

Dear Secretary Mayorkas:

As the U.S. recovers from the COVID-19 pandemic, it is essential that we take advantage of every opportunity for economic growth and job creation. One of the biggest untapped resources to create new opportunities for Americans is international entrepreneurs’ and students’ strong motivation to launch their startup businesses in the United States. Over half of the billion-dollar startups launched in the United States were founded by immigrants—despite the incredibly challenging and outdated immigration system.1 Immigrants also start businesses at higher rates than native-born Americans.2

We commend the Biden Administration for its recent actions reviving International Entrepreneur Parole (IEP).3 It is the last remaining action item of your predecessor, Secretary Jeh Johnson’s 2014 plan to support high skilled businesses and workers.4 This announcement strongly signaled to the world that the United States welcomes talented minds from around the globe and strives to lead the world in technological and scientific achievement.

For the United States to stay competitive and remain attractive to talented individuals all over the world, it is vital that the IEP application process be as efficient and smooth as possible. It is currently our best option to bring innovative entrepreneurs to our country and allow those who are already here to stay. Unlike many of our international rivals, the United States does not have a dedicated visa for startup entrepreneurs. There are limited pathways for international students transitioning from their student visas to start their own businesses. But, if it were functioning smoothly, IEP could fill this gap and has the potential to create a million jobs over ten years.5

Unfortunately, there are several procedural issues which make the IEP process volatile, uncertain, complex, and ambiguous. As currently situated, it is very difficult to actually use the program. Some of these barriers, such as the large backlogs at U.S. consulates, will lift as the COVID-19 crisis recedes, but others will continue to make the program ineffective.

As experienced immigration lawyers, venture capitalists, and policy experts, we have five key recommendations to improve the efficacy of IEP:

  1. Immediately establish premium processing for IEP applications so qualified entrepreneurs can rapidly launch their businesses in the United States.
    1. USCIS has in the past agreed to adhere to a 14-day processing time for certain cases without premium processing (e.g. O and P visas).6 Additionally, a clear procedure was established to allow applicants to follow-up should processing times exceed that timeframe. We would encourage the USCIS to implement a similarly defined and prompt timeframe for the adjudication of these cases. 
    2. Establish and communicate suitable processing systems at the USCIS service centers. Currently, IEP applications are adjudicated at the EB-5 Immigrant Investor Program Office. We respectfully suggest that the agency consider whether IEP applications should be redirected to officers who routinely adjudicate and are familiar with L-1 and E-2 cases as IEP applications are more similar to E-2 and L-1 petitions. 
  2. Incorporate the use of the Validation Instrument for Business Enterprises (VIBE) program to streamline the qualification process for investors. This program is already being used to validate information about companies petitioning to employ nonimmigrant and immigrant workers through Forms I-129 (for the H-1B, for example), I-140, I-360, and I-485.7
  3. Modify USCIS guidance on the term “qualified investor” to ensure that investors with passive foreign limited partners are not unnecessarily excluded.
  4. Restart the USCIS Entrepreneur in Residence initiative to develop routine feedback loops with stakeholders and consider a hybrid model with both virtual and in-person activities to improve entrepreneurs’ ability to participate and decrease the agency’s administrative and badging burdens.
  5. Establish regular interaction with stakeholders in the academic, entrepreneur, legal, and investment communities to further refine the program. As the IEP program continues to develop, there will certainly be additional administrative or procedural hurdles that come to light, and the communities most impacted by these hurdles will be able to most readily and reliably recognize these hurdles ahead of time. Increased interaction can include more events hosted by the Public Engagement Division, or the creation of an entrepreneurship subcommittee for the Homeland Security Academic Advisory Council (HSAAC).8

To build our economy back better than before, we need immigrant entrepreneurs and innovative startup founders. By making these changes, the United States will have the opportunity to maintain its reputation as the top destination for entrepreneurship and innovation in the world and continue to be able to create new jobs for our citizens.

Sincerely,

Coalition for International Entrepreneurship

Signatories

  1. American Immigration Council
  2. American Immigration Lawyers Association
  3. Angel Capital Association
  4. Carnegie Mellon University Graduate Student Assembly
  5. Center for American Entrepreneurship
  6. Consumer Technology Association (CTA)
  7. Digital Irish Inc
  8. Economic Innovation Group
  9. Federation of American Scientists
  10. FWD.us
  11. Illinois Institute of Technology
  12. Illinois Science & Technology Coalition
  13. Information Technology Industry Council (ITI)
  14. Institute for Progress
  15. National Immigration Forum
  16. National Venture Capital Association
  17. Niskanen Center
  18. Nova Credit
  19. Presidents’ Alliance on Higher Education and Immigration
  20. TechNet
  21. Washington Technology Industry Association
  22. Katie Allen, Senior Vice President, Center for American Entrepreneurship
  23. John R. Dearie, President, Center for American Entrepreneurship
  24. Brad Feld, Partner, Foundry Group
  25. Kumar Garg, Vice President, Schmidt Futures
  26. Elizabeth Goss, Esq., Goss Associates LLC
  27. Troy Henikoff, Managing Director, MATH Venture Partners
  28. Jaclyn Hester, Foundry Group
  29. Billy Lawless
  30. Brienne Maner, Executive Director of Startup Sioux Falls
  31. Fiona McEntee, Managing Attorney of McEntee Law Group
  32. Blake Patton, Founder and Managing Partner of Tech Square Ventures
  33. Nik Rokop, Coleman Foundation Clinical Associate Professor of Entrepreneurship, Stuart School of Business, Illinois Institute of Technology
  34. Leslie Lynn Smith, National Director, GET Cities
  35. Tahmina Watson, Immigration Attorney, Author of The Startup Visa; Watson Immigration Law
  36. Stephen Yale-Loehr, Of Counsel, Miller Mayer

High-skilled Immigration Policy: FAS’s Current and Future Contributions

Since the creation of this country, the American scientific enterprise has been built by talented immigrants. FAS has worked to strengthen the U.S. immigration system to ensure that experts in all scientific fields, as well as entrepreneurs with innovative ideas are able to build lives in the United States. Over the past two years, FAS has focused on many different aspects of the immigration system to improve these highly skilled immigrants’ ability to settle here. These aspects include:

While international scientists have played a huge role in establishing the United States as the best place to conduct scientific research and start innovative businesses, they also helped launch FAS over 75 years ago. FAS was started because scientists who worked with accomplished immigrants such as Enrico Fermi, John von Neumann, and Leo Szilard on the Manhattan Project, wanted to use science and technology to benefit humanity, instead of destroying it. Immigrants still have a crucial role in maintaining the United States’ reputation as a leader in scientific research and innovation. The development of the COVID-19 vaccine is just one example. Moderna’s CEO, Stéphane Bancel, emigrated from France. The company’s Chief Medical Officer, Tal Zaks, was born in Israel. Albert Bourla, the CEO of Pfizer, moved to the United States from Greece. Additionally, Katalin Karikó, who laid the groundwork for the development of mRNA vaccines, was born in Hungary. The U.S. federal government must act to ensure that talented individuals like these can come to the country as quickly and easily as possible.

FAS is dedicated to promoting the importance of all aspects of science and technology research in the federal arena. For us to continue this work for the next 75 years, we ask for support from donors like you. Your support helps fund all of FAS’ important work, from the Day One Project, to the Nuclear Information Project, to the Congressional Science Policy Initiative.

Competitiveness Through Immigration

Summary

Immigration reform is a national security imperative. A net inflow of science and technology talent is a defining source of strength and key competitive advantage for the United States. Highly skilled science and technology workers provide our nation with an economic edge and drive innovation. However, intensifying competition for skilled workers abroad and self-imposed barriers to immigration at home are deterring potential talent from coming to the United States, instead routing them to competitor countries.

The Biden-Harris Administration should act to attract and retain foreign science and technology talent through a focused overhaul of U.S. immigration laws and procedures. Specifically, the Administration should draw top talent to the United States by streamlining the visa process and providing greater flexibility for foreign scholars and workers. Steps should be taken to ground visa processes in evidence-based procedures, expand visa limits and classes, redesign security-screening procedures to ease bottlenecks, and reallocate resources to build analytic capabilities. Doing so will enhance our national competitiveness, a top government-wide priority. Imminent action is crucial: the suppressed demand for U.S. visa services due to the COVID-19 pandemic has opened a once-in-a-century window to implement reform.

Congress Just Authorized USCIS to Raise Over $1 Billion in Fees from Business Users

How long will the immigration agency leave this money on the table?

Background

As the primary federal agency responsible for legal immigration, U.S. Citizenship and Immigration Services (USCIS) is almost entirely funded by user fees rather than appropriations from Congress. In May 2020, USCIS claimed that, due to a lower volume of fee collections caused by the COVID-19 pandemic, the agency would have to furlough over 13,000 of its employees absent a $1.2 billion bailout. Analysis of public documents by the Federation of American Scientists (FAS), however, demonstrated that USCIS was on the path to insolvency long before the COVID-19 pandemic, as a result of questionable management and policy choices.

Rather than accepting USCIS leadership’s demand for $1.2 billion in appropriated funds recoupable against an across-the-board 10% user fee increase, Congress opted to expand the agency’s ability to collect “premium processing” fees from those users willing to pay for faster service. For the better part of the past two decades, USCIS has provided a guaranteed 15-day turnaround for most employment-based green card petitions (Form I-140) and temporary work status petitions (Form I-129), in exchange for a special $1,440 premium processing fee. These extra fees could only be spent on the premium processing program itself, or on “infrastructure improvements in the adjudications and customer-service processes”—typically large information technology (IT) projects. In recent years, USCIS has enjoyed more than $600 million of extra cash on hand thanks to its premium processing program.

On August 22, 2020, the House of Representatives unanimously passed the Emergency Stopgap USCIS Stabilization Act, which was later included in the fiscal year (FY) 2021 Continuing Appropriations Act signed into law on October 1. This update to Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) gives USCIS the authority to take three major revenue-raising actions:

Immediately raise the premium processing fee for most I-140 and I-129 petitions from $1,440 to $2,500 (which USCIS has proceeded to do, effective Oct. 19, 2020).

Immediately extend premium processing services to employment-based green card petitions for multinational executives (Form 140 for EB-1C), employment-based green card petitions for individuals of exceptional ability with with a National Interest Waiver (Form 140 for EB-2 with “NIW”), applicants for a change or extension of nonimmigrant status (Form I-539), and applicants for an employment authorization document (Form I-765). (USCIS has declined to take such actions thus far.)

Issue new regulations to extend premium processing services to “any other immigration benefit type that the Secretary [of Homeland Security] deems appropriate.” (USCIS has not announced any such rulemaking plans thus far.)

These authorized fee and service changes are summarized in Figure 1 below. 

Figure 1: Changes in Authorized Fees, Timeframes, and Eligibility for Premium Processing

Before Oct. 1, 2020Authorized as of Oct. 1, 2020
Form TypeFeeProcessing TimeframeForm TypeFeeProcessing Timeframe
I-140 (except EB-1C and EB-2 NIW)$1,44015 daysI-140 (except EB-1C and EB-2 NIW)$2,50015 days
I-129 (H-2B)$1,44015 daysI-129 (H-2B)$2,50015 days
I-129 (R)$1,44015 daysI-129 (R)$1,50015 days
I-129 (except H-2B and R)$1,44015 daysI-129 (except H-2B and R)$1,50015 days
I-140 (EB-1C)$2,50045 days
I-140 (EB-2 NIW)$2,50045 days
I-539 (extend/change status)$1,75030 days
I-765 (employment authorization)$1,50030 days

n addition, the new law allows USCIS to use premium processing revenue for much more than just IT projects, including “the provision of information and services to immigration and naturalization benefit requestors,” reducing backlogs, and “otherwise offset[ting] the cost of providing adjudication and naturalization services.” (See Appendix B for the full text of the legislation.)

This means that USCIS immediately has extra funds available to mitigate its fiscal issues.

Expected Revenue from Premium Processing Expansion

If USCIS expanded its premium processing services only to the extent authorized by Congress for immediate execution, without the need for new regulations, the agency could increase its annual revenue by some $685 million to $1.06 billion. 

Figure 2 below demonstrates that $300–434 million of this annual revenue increase could come from the action USCIS has already taken to raise premium processing fees on forms that have been included in the program for years (Forms I-140 and I-129). 

USCIS could raise an additional $385–626 million in annual revenue by expanding premium processing to only those forms authorized for immediate eligibility by Congress. Most of this additional revenue would come from applications to change or extend nonimmigrant status (Form I-539) and applications for employment authorization by international students who have recently graduated and seek on-the-job training through the Optional Practical Training (OPT) program (Form I-765).

These forecasts are based on publicly available data and informed estimates about how many users would opt to take advantage of expanded premium processing, as explained in detail in the Methodology section below (Appendix A).

Note that Congress has also authorized USCIS to expand premium processing to users above and beyond the employment-based immigration system (e.g. family-based immigration and naturalization), but such changes would require new regulations and “a detailed methodology supporting the proposed premium fee amount.”

Figure 2: Expected Revenue Increase for USCIS from Expanded Premium Processing

Higher fees for already eligible forms

Total form volume

Fee change

Lower bound (status quo utilitization)

Upper bound (always-on premium processing)

Form

(FY) 2019

2018

2017

2016

Average

Net fee increase

Exp. utilitization

Est. premium volume

Add’l revenue

Exp. utilitization

Est. premium volume

Add’l revenue

I-140 (except EB-1C and EB-2 NIW)

114,634

109,913

112,312

118,762

113,905

$1,060

45%

50,733

$53,776,481

65%

73,514

$77,924,383

I-129 (H-2B)

7,460

6,148

6,112

6,527

6,562

$60

45%

2,923

$175,353

65%

4,235

$254,094

I-129 (R)

8,908

8,481

8,366

8,207

8,491

$60

45%

3,782

$226,896

65%

5,480

$328,782

I-129 (excluding H-2B and R)

534,833

536,392

511,957

494,902

519,521

$1,060

45%

231,391

$245,274,239

65%

335,295

$355,412,691

Total

665,835

660,934

638,747

628,398

648,478

288,827

$299,452,969

418,523

$433,919,951

New fees for newly eligible forms

Total form volume

Fee change

Lower bound (status quo utilitization)

Upper bound (always-on premium processing)

Form

(FY) 2019

2018

2017

2016

Average

New fee

Exp. utilitization

Est. premium volume

Add’l revenue

Exp. utilitization

Est. premium volume

Add’l revenue

EB-1C (I-140)

22,688

21,753

22,228

23,505

22,543

$2,500

45%

10,041

$25,101,670

65%

14,549

$36,373,376

EB-2 NIW (I-140)

5130

4919

5026

5314

5,097

$2,500

45%

2,270

$5,675,570

65%

3,290

$8,224,140

I-539 (extend/change status)

221,566

230,975

233,430

214,785

225,189

$1,750

35%

78,816

$137,928,263

55%

123,854

$216,744,413

I-765 (employment auth) for:

Post-completion OPT

151,200

157,488

166,418

158,026

158,283

$1,500

45%

70,498

$105,747,107

75%

118,712

$178,068,375

STEM OPT

61,963

65,119

57,214

51,809

59,026

$1,500

45%

26,290

$39,434,779

75%

44,270

$66,404,531

Pre-completion OPT

2,119

2,693

3,345

3,636

2,948

$1,500

45%

1,313

$1,969,693

75%

2,211

$3,316,781

H-4 (spouses of H-1B)

62,148

54,945

52,253

42,040

52,847

$1,500

45%

23,537

$35,306,157

75%

39,635

$59,452,313

L-2 (spouses L-1)

29,337

27,803

27,266

26,008

27,604

$1,500

45%

12,294

$18,441,591

75%

20,703

$31,053,938

J-2

10,905

10,244

9,996

10,091

10,309

$1,500

45%

4,592

$6,887,328

75%

7,732

$11,597,625

E-1/E-2 spouses

9,876

9,840

9,229

8,884

9,457

$1,500

45%

4,212

$6,318,283

75%

7,093

$10,639,406

G dependents

2,310

2,442

2,295

2,485

2,383

$1,500

45%

1,061

$1,592,056

75%

1,787

$2,680,875

A dependents

1,236

1,300

1,329

1,707

1,393

$1,500

45%

620

$930,648

75%

1,045

$1,567,125

Total

580,477

589,521

590,029

548,290

577,079

235,545

$385,333,145

384,880

$626,122,897

Grand total

1,246,312

1,250,455

1,228,776

1,176,688

1,225,558

524,373

$684,786,114

803,403

$1,060,042,847

Conclusion

USCIS should take full advantage of its newly expanded premium processing authority as soon as possible. This course of action would allow the agency to more quickly dig itself out of its self-imposed fiscal hole, while providing a valuable service to many of its users. 

In fact, boosting revenue through expanded premium processing is fiscally superior to the alternatives previously proposed by the agency. If Congress had authorized USCIS to impose an indiscriminate 10% across-the-board fee increase, this would have raised only about $400 million per year (given that USCIS’ annual non-premium fee collections are about $4 billion.)

Separately, USCIS has attempted to finalize a new fee schedule that would impose unprecedented burdens on applicants for naturalization, permanent residence, asylum, and many other users, both by dramatically raising fees and effectively eliminating fee waivers for lower-income applicants. Even stipulating that USCIS requires an extra $1 billion in annual revenue to stay solvent—a claim made in the fee rule that does not withstand empirical scrutiny, as discussed at a recent House Judiciary Committee hearing—the agency would almost certainly not generate that level of revenue by seeking to extract it from those least able to pay. Although USCIS protested in its final rule that the agency “does not know the price elasticity of demand for immigration benefits,” it stands to reason that dramatic fee increases on price-sensitive users will lead to lower-than-expected volume.

Congress has handed USCIS a golden opportunity to generate a significant amount of new revenue in exchange for the provision of valuable new services. The agency should quickly proceed with the authorized non-regulatory expansion of premium processing to all employment-based users who want it. This would enable USCIS to alleviate its insolvency crisis, remove the threat of a furlough from its embattled employees, and fund better services for all those who rely on the legal immigration system.

Appendix A: Methodology

This methodology section makes frequent reference to the following form types and immigration statuses.

Figure 3: Glossary of Premium Processing-Eligible Forms and Immigration Statuses

Form Immigration status Definition
I-129 Petition for a nonimmigrant worker
H-2B Temporary non-agricultural workers
R Person who works in a religious occupation (also includes spouses and dependents)
I-140 Immigrant petition for foreign workers
EB-1C First preference employment-based permanent residency for certain multinational managers or executives
EB-2 with or without NIW Second preference employment-based permanent residency, with or without a National Interest Waiver
I-539 Application to extend or change nonimmigrant status
I-765 Application for employment authorization
A Ambassadors, public ministers, career diplomats, consuls, and immediate family
E-1  Individuals or employees from countries with which the U.S. maintains commerce treaties who carry out international trade (including spouses and dependents)
E-2 Individuals or employees from countries with which the U.S. maintains commerce treaties who invest a substantial amount of money in a U.S. business (including spouses and dependents)
G Diplomats, government officials, and international organization employees visiting the U.S. for a governmental purpose (including immediate family and attendants or servants)
H-4 Spouse or child of an H-1B, B-1, C, H-2A, H-2B, or H-3 visa holder
L-1 Intracompany transferee, including executive, managerial, or specialized personnel continuing their employment in the U.S. with an international firm or corporation
Post-completion OPT Optional Practical Training after the completion of an undergraduate or graduate degree
Pre-completion OPT  Optional Practical Training prior to the completion of an undergraduate or graduate degree
STEM OPT Optional Practical Training extension for graduates with a science, technology, engineering, or mathematics (STEM) degree

The first section of our model (see Figure 2) estimates the expected revenue generated by increasing fees for forms that were already eligible for premium processing. This includes I-140s (except for EB-1C and EB-2 NIW) and I-129s. The total annual volume for these forms was derived from both USCIS data (2019–2016) and the Department of Homeland Security (DHS) lawful permanent resident data tables (Table 7d 2018–2016). The net premium processing fee increase for these forms types is based on the fee summary in Figure 1.

The precise percentage of forms that use premium processing versus regular processing is not publicly available. In its most recent Federal Register notice to increase the premium processing fee last year, however, USCIS published the annual volume of Form I-907 (Request for Premium Processing Service). On average between FY 2016–2018, it appears that 45% of eligible I-140 and I-129 filers also filed an I-907. As a lower bound, it seems reasonable to expect that 45% of I-140 and I-129 filers will continue to opt into premium processing, given that business users are relatively price-inelastic. 

The actual utilization rate may end up significantly higher, however, given that Congress has now constrained USCIS’ ability to turn off premium processing services. Over the past several years, USCIS has periodically suspended premium processing when the volume of forms in the program became too great for the agency to adjudicate within the required 15 calendar days. The length and frequency of these suspensions has been difficult to predict. In a world of always-on premium processing, more users are likely to take advantage of the program. While it is impossible to predict this upper bound with certainty, we added an additional 20 percentage points, for a maximum utilization rate of 65%.

The second section of our model (again, see Figure 2) estimates the expected annual revenue generated from new forms that USCIS has the authority to bring into the premium processing program immediately, without issuing a new regulation. These forms include I-140 for EB-1C and EB-2 NIWs; I-539; and I-765. We make the assumption that the main users who would take advantage of premium processing for employment authorization are those in the categories of pre- and post-completion Optional Practical Training (OPT); J-2; spouses of H-1B (H-4), L-1 (L-2), E-1, and E-2 visa holders; and dependents of G and A visa holders. 

The total annual volume for these forms was derived from both USCIS data (2019–2016) and the Department of Homeland Security (DHS) lawful permanent resident data tables (Table 7d 2018–2016). The new premium processing fees for these forms types are based on the fee summary in Figure 1.

For EB-1C and EB-2 NIW petitions, we made the same assumptions of a 45–65% utilization rate as described above.

For I-539 applications, we assumed that both the lower- and upper-bound utilization rates would be 10 percentage points lower (35–55%), given that a comparable proportion of filers are in a humanitarian status category (e.g. U or T), and are less likely to be able to afford premium processing fees.

For I-765 applications, we assumed that the upper-bound utilization rate would be higher (75% rather than 65%), because the need for employment authorization is often acutely time-sensitive.

Appendix B: Premium Processing Expansion from FY 2021 Appropriations Act

SECTION 4102. EXPANSION OF PREMIUM PROCESSING.

(a) IN GENERAL.—Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) is amended to read as follows:

‘‘(u) PREMIUM FEE FOR CERTAIN IMMIGRATIONBENEFIT TYPES.—

‘‘(1) IN GENERAL.—The Secretary of Homeland Security is authorized

to establish and collect a premium fee for the immigration benefit types 

described in paragraph (2). Such fee shall be paid in addition to any other 

fees authorized by law, deposited as offsetting receipts in the Immigra-

tion Examinations Fee Account established under subsection (m), and 

used for the purposes described in paragraph (4).

‘‘(2) IMMIGRATION BENEFIT TYPES.—Subject to reasonable condi-

tions or limitations, the Secretary shall establish a premium fee under 

paragraph (1) in connection with—

‘‘(A) employment-based nonimmigrant petitions and associated 

applications for dependents of the beneficiaries of such petitions;

‘‘(B) employment-based immigrant petitions filed by or on behalf of 

aliens described in paragraph (1), (2), or (3) of section 203(b);

‘‘(C) applications to change or extend nonimmigrant status;

‘‘(D) applications for employment authorization; and

‘‘(E) any other immigration benefit type that the Secretary deems 

appropriate for premium processing.

‘‘(3) AMOUNT OF FEE.—

‘‘(A) IN GENERAL.—Subject to subparagraph (C), with respect to 

an immigration benefit type designated for premium processing by 

the Secretary on or before August 1, 2020, the premium fee shall be 

$2,500, except that the premium fee for a petition for 

classification of a nonimmigrant described in subparagraph (H)(ii)

(b) or (R) of section 101(a)(15) shall be $1,500.

‘‘(B) OTHER IMMIGRATION BENEFIT TYPES.—With respect 

to an immigration benefit type designated for premium processing 

but not described in subparagraph (A), the initial premium fee shall 

be established by regulation, which shall include a detailed method

ology supporting the proposed premium fee amount.

‘‘(C) BIENNIAL ADJUSTMENT.—The Secretary may adjust a pre-

mium fee under subparagraph (A) or (B) on a biennial basis by the 

percentage (if any) by which the Consumer Price Index for All 

Urban Consumers for the month of June preceding the date on 

which such adjustment takes effect exceeds the Consumer Price

Index for All Urban Consumers for the same month of the second 

preceding calendar year. The provisions of section 553 of title 5, 

United States Code, shall not apply to an adjustment authorized

under this subparagraph.

‘‘(4) USE OF FEE.—Fees collected under this subsection may only be used 

by U.S. Citizenship and Immigration Services to—

‘‘(A) provide the services described in paragraph (5) to premium 

processing requestors;

‘‘(B) make infrastructure improvements in adjudications processes 

and the provision of information and services to immigration and 

naturalization benefit requestors;

‘‘(C) respond to adjudication demands, including by reducing the 

number of pending immigration and naturalization benefit re-

quests; and

‘‘(D) otherwise offset the cost of providing adjudication and natu-

ralization services.

‘‘(5) PREMIUM PROCESSING SERVICES.—The Secretary—

‘‘(A) may suspend the availability of premium processing for des-

ignated immigration benefit requests only if circumstances prevent 

the completion of processing of a significant number of such re-

quests within the required period; and

‘‘(B) shall ensure that premium processing requestors have direct 

and reliable access to current case status information as well as the 

ability to communicate with the premium processing units at each 

service center or office that provides premium processing ser-

vices.’’.

(b) EXPANSION TO NEW BENEFIT REQUESTS.—

(1) IN GENERAL.—Notwithstanding the requirement to set a fee by regulation 

under section 286(u)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 

1356(u)(3)(B)), as amended by subsection (a), the Secretary of Homeland Secu-

rity may set a fee under that section without regard to the provisions of section 

553 of title 5, United States Code, if such fee is consistent with the following:

(A) For a petition for classification under section 203(b)(1)(C) of the Im-

migration and Nationality Act (8 U.S.C. 1153(b)(1)(C)), or a petition for 

classification under section 203(b)(2) involving a waiver under section 

203(b)(2)(B) of such Act, the fee is set at an amount not greater than 

$2,500 and the required processing timeframe is not greater than 45 days.

(B) For an application under section 248 of the Immigration and Nation

ality Act (8 U.S.C. 1258) to change status to a classification described in 

subparagraph (F), (J), or (M) of section 101(a)(15) of such Act (8 U.S.C. 

1101(a)(15)), the fee is set at an amount not greater than $1,750 and the 

required processing timeframe is not greater than 30 days.

(C) For an application under section 248 of the Immigration and Nation-

ality Act (8 U.S.C. 1258) to change status to be classified as a dependent 

of a nonimmigrant described in subparagraph (E), (H), (L), (O), (P), or 

(R) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), or to extend 

such classification, the fee is set at an amount not greater than $1,750 and 

the required processing timeframe is not greater than 30 days.

(D) For an application for employment authorization, the fee is set at an 

amount not greater than $1,500 and the required processing timeframe is 

not greater than 30 days.

(2) CLARIFICATION.—The required processing timeframe for each of the 

applications and petitions described in paragraph (1) shall not commence until

the date that all prerequisites for adjudication are received by the Secretary of 

Homeland Security.

(c) OTHER BENEFIT REQUESTS.—In implementing the amendments made by subsection (a), the Secretary of Homeland Security shall develop and implement processes to ensure that the availability of premium processing, or its expansion to additional immigration benefit requests, does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated.

Appendix C: List of Sources for Data Model

Temporary Work Visa Holders in the United States, By the Numbers

The Trump administration is expected to unveil an executive action in the near future that would significantly restrict temporary (“nonimmigrant”) work visa categories.  While there are multiple public data sets available from the Department of Homeland Security and the Department of State relevant to these visa categories, they are unfortunately not sufficient to answer these basic questions with great precision: How many individuals enter the country each year, for the first time, using each of these visa categories? How many individuals are already in the United States at any given moment, having previously entered using each of these visa categories?

The goal of this report is to synthesize the relevant data and clearly present what it can—and cannot—reveal about the number of individuals potentially impacted by work visa restrictions. You can read the full report here.

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