Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
Our startup employs several individuals who are on work visas or have employment authorization. Many of them have been waiting for quite a while for the government to tell them their applications have been received.
Why? When will things be back on track? We have a few employees who are waiting for green cards, and a few F-1 visa holders who will be extending their OPT to STEM OPT.
Is there anything we can do?
— Patient in Pasadena
Thanks for your questions. Last September, an increase in applications submitted to U.S. Citizenship and Immigration Services (USCIS) amid COVID-19-related staff reductions created a substantial backlog and subsequent delay in USCIS sending out receipt notices.
My law firm partner, Anita Koumriqian, and I provided an update on receipt notices on a recent podcast. Dedicating an entire episode to receipt notices was unthinkable a year ago because applicants usually received receipt notices within one to three weeks after USCIS received their application.
For those who don’t know, USCIS sends a letter called a receipt notice to applicants when it receives an application. The receipt notice — also known as a Notice of Action or Form I-797 — contains information about:
- Whether the application was accepted, in which case you will be notified of how it will be processed, or rejected if it was not filed appropriately, such as not using the latest form or forgetting to check a box on the application form.
- A receipt number, which can be used to check the status of your case either online or by phone.
- The date your application was received, which for most green card applications is the priority date. (Priority dates for the EB-2 and EB-3 green cards are when the Labor Department received the PERM Labor Certification application.) A priority date determines your place in line for a green card number to become available based on the green card category and the green card candidate’s country of birth.
What caused the backlog?
Before the pandemic, applicants would typically be notified in less than one month after USCIS received their application. Currently, applicants are receiving their receipt notice as long as eight to nine weeks after USCIS received their application, and sometimes longer.
As I mentioned earlier, coronavirus-related staffing reductions at USCIS coupled with a substantial jump in the number of applications submitted prompted huge delays that began in September. Application submissions surged primarily due to:
- Anticipation of fee hikes that were slated to go into effect on October 2, 2020, before being blocked by a federal court judge.
- Rapid forward movement in the monthly Visa Bulletin for some green card categories, which meant green card numbers became available to many waiting in line.
Since the fall, USCIS has been trying to catch up with receipt notices. Unfortunately, we don’t have any insight into when receipt notice processing will return to the under-30-day time frame.
What to do?
Even if delayed, USCIS continues to issue receipt notices that reflect the original application filing date. In the meantime, find out if the check that was sent to cover the application fees was cashed by USCIS. If so, that means the application was received, and USCIS will print the receipt number on the check, which can be used to check the status of the case.
If your company is planning to file any new applications to USCIS, include an E-Notification of Application/Petition Acceptance (Form G-1145). This will allow you to receive notification by email or text message that USCIS accepted your application.
The American Immigration Lawyers Association (AILA) has received widespread reports of application rejections for reasons such as failure to:
- Check a box.
- Include all pages of a form.
- Sign a form.
- Submit the correct fee amount.
However, AILA notes that in many of these situations, the applications or fees were submitted correctly. If you receive a receipt notice rejecting an application, consult an immigration attorney to discuss your options. If there was an error in the application or fee amount, USCIS will allow the application to be refiled in most cases. Be aware that for green card beneficiaries, their priority date will be when the second application was received by USCIS.
Some employees, such as those on H-1B visas, remain in valid status while filing an extension petition and can continue to work with your company as their sponsoring employer. However, for employers who are waiting for employment authorization (work permit) for employees, such as F-1 students who are extending their OPT to STEM OPT, your company may, unfortunately, have to place them on unpaid leave until they receive their receipt notice if their form EAD expired, so please consult an attorney.
AILA states that Application for Employment Authorization (Form I-765) and Application for Travel Document (Form I-131) are experiencing significant delays not only for receipt notices but also in their adjudication. Previously, the average processing times varied from 90 days to six months, but are now taking as long as eight or nine months, according to AILA.
If the receipt notice or employment authorization delays are extreme, do not resubmit your application to USCIS. That would further clog the system and create confusion with the case.
Again, I suggest working with an immigration attorney to discuss options, such as contacting USCIS or requesting a case review by the Office of the Citizenship and Immigration Services Ombudsman (CIS ombudsman) is warranted. A case review can be filed with the CIS ombudsman if no action has been taken on a case for more than 90 days. If that action produces no results, your attorney may suggest you contact your local senator or member of congress for assistance with the case.
In the meantime, hang in there and make sure to get support if you need it.
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!