Understanding the Potential Impact on the Employer and Immigrating Employee

On August 28 USCIS announced that it will begin requiring in-person interviews for employment-based applicants for US permanent residency (the ‘green card’) as early as October 1. Employment based applicants may elect to complete the last step of the green card process in the US through the adjustment of status process, which, for the last several years, has not required the applicant to appear for an interview, or through consular processing abroad, which has consistently had the interview component. The re-introduction of the interview during the adjustment of status process may impact up to 125,000 employment-based adjustment of status applications each year and could slow down an already slow process.

Employment-based applicants are those who are sponsored for permanent residency through an employer’s immigrant visa petition, including, but not limited to, persons sponsored via the PERM process, Multinational Managers, and Persons with Extraordinary Ability. For the last several years, USCIS has customarily waived the interview requirement for employment-based applicants absent special circumstances. Other applicants for adjustment of status, including family-based applicants, were already subject to the interview requirement.

USCIS has indicated that the purpose of the interviews will be to provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States. This policy is in line with the administration’s stated efforts to apply extreme vetting to the immigration process.

Little detail has been provided with regard to whether current pipeline cases will be affected or how the additional substantial USCIS workload will be staffed. Employers and their immigrating employees will likely experience increased processing time for adjustment of status applications. Most USCIS field offices are already experiencing delays in scheduling adjustment interviews for the existing caseload. Shifting USCIS staff and resources to the new interview requirement will inevitably impact the timeframe for other applications and petitions as well. Employers may now be required to pursue multiple extensions of underlying nonimmigrant status as well as several extensions of temporary employment and travel authorization (EAD/AP) to accommodate their immigrating employee’s need to maintain work authorization during a lengthened wait for the green card. Employers’ budgeting for this step of this process will also need to be calibrated to accommodate the additional steps needed to keep the immigrating employee and family in status during the wait.

Despite a strong preference for adjustment of status in past years, consular processing at a US Consulate for employment-based cases may become a quicker and more preferred route to reach permanent residency.

Baker McKenzie will closely monitor the impact of this process change and will provide further information as it becomes available. To learn further information regarding how this announcement will impact your business, please contact us.