The Office of the Citizenship and Immigration Services Ombudsman is statutorily required to provide an annual report to Congress. This year's Report, published on June 28, is a great "peek behind the curtain" at the current challenges USCIS is facing and offers multiple solutions to those challenges for USCIS' consideration. Items of interest for employers include:

- In FY 2023, over 45,000 Employment Authorization Documents (EADs) were returned to USCIS by the postal service as "nondeliverable." This could create gaps in employment authorization (and necessitate adverse employment actions, such as suspension without pay) and potentially confusion about whether the Subject can demonstrate continued employment authorization. This could also result in additional Form I-9 work, such as documenting that the employee presented a receipt for an application to replace a lost, stolen, or damaged document and reverifying the employee's work authorization after ninety days (assuming the EAD arrives within 90 days) when reverification of the EAD would not have taken place for another year (or years).

- USCIS projects that it will receive 4.6 million EAD requests in FY 2025 which is double the number of requests received in FY 2022. It is highly unlikely that USCIS will be able to keep pace with these projected requests, given that the struggles they face with current volume. Employers should prepare for continued delays in adjudication and production of EADs and increased reliance on EAD extensions to demonstrate continuing work authorization.

- Each EAD takes approximately 10 minutes to produce and facilities can produce 12,500 EADs per day. Ten (10) percent of these EADs are ultimately rejected and destroyed as a result of not meeting established standards. Not meeting photo quality standards is one of the main reasons an EAD is rejected and destroyed. EAD delays such as these frequently cause confusion for both practitioners and employees alike.

- Complex work authorization rules result in unnecessary EAD requests to USCIS and are accompanied by additional work.

The Ombudsman properly points out that the work authorization rules "require[] noncitizens and employers to know how to find and identify the most current USCIS announcements online, navigate between different webpages and regulations, and understand differing USCIS receipt notices." Among the many recommendations the Ombudsman made in this regard was "offering clear and comprehensive guidance on acceptable employment authorization documents," a solution that practitioners have been championing for years.

In a recent meeting with the Ombudsman's office, representatives from BIG's i9Success team stressed the need for USCIS to "own the narrative" around what constitutes an acceptable employment authorization document because of the high stakes involved for both employees and employers. Many of the foreign national employees who are negatively impacted by USCIS's lack of guidance or instruction represent vulnerable populations who rely on the EAD to work and ultimately, survive. Additionally, employers depend on these employees to accomplish business goals and the instability caused by USCIS's lack of guidance creates business continuity risk. When coupled with the potential of not knowing a particular extension combination exists, employers risk the possibility of a discrimination investigation by the Immigrant and Employee Rights Section of the Department of Justice which creates an untenable, unsafe, and unfair dynamic in which there are no winners.

Posted: July 24, 2024

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