By: Eliza Collison
As the COVID-19 pandemic looms, the immigration system continues to experience backlogs. Court closures means individuals with pending immigration cases, such as those facing removal orders, will not have a hearing any time soon. Immigration attorneys and federal employees are grappling with remote work and their own health. The closures of consulates abroad and growing travel restrictions will put visas on hold.
There is an issue that existed even prior to the COVID-19 crisis unfolded which the crisis will exacerbate. Applicants to the H-1B visa program for highly skilled foreign workers is backlogged with unprecedented delays the past five years. In 2019, hundreds of H1-B workers, temporary skilled workers coming to the United States, and their spouses sued USCIS over delays in visa processing times. In 2015, DHS passed regulations that authorized spouses of H1-B workers to gain work authorization.
Processing delays for the H1-B in particular increased forty-six percent between 2017 and 2019 and the H-4 visa for dependent spouses seeking work authorization experienced similar delays. Many plaintiffs drop these suits because the visa is approved during the course of litigation. In order to address this issue, USCIS needs to implement a long-term solution to address these processing delays instead of the short term solution of relying on lawsuits to be dropped while visas are processing.
Delays in visa processing create uncertainty and frustration for business sectors that rely heavily on H1-B workers, particularly the tech and healthcare industries. The healthcare staffing company MedPro, sued the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (“USCIS”), alleging an “untenable” delay in deciding more than 150 H-1B petitions. The company filed the lawsuit to compel USCIS to issue process the pending visas within fifteen days of the court’s judgement. Many H-4 visa holders are high skilled workers and unable to work while their visas are pending. This has a disparate impact on female workers because the majority of H-4 visa holders are women. The current administration discussed discontinuing the H-4 visa entirely, which would increase insecurity.
As of March 2020, USCIS does not appear to have a long term solution for the visa backlog issue. When the crisis has lifted, USCIS must implement a long-term solution in order to offer peace of mind to the industries which rely on these visas most. While the COVID-19 pandemic takes precedent, a long-term solution to the visa backlogs does not appear to be on the horizon. As of March 18, USCIS closed its offices and suspended in-person services. What the COVID-19 crisis does offer, however, is an opportunity for USCIS to be flexible in order to avoid further delays. When the COVID-19 pandemic ends, USCIS can continue to be flexible to lessen the H1-B and H-4 visa backlog.
 Sarah Jarvis, Coronavirus: The Latest Court Closures And Restrictions, Law 360 (March 12, 2020), https://www.law360.com/aerospace/articles/1252836/coronavirus-the-latest-court-closures-and-restrictions.
 Natalie Rodriguez, How A Novel Virus Is Raising Novel Issues For Attorneys, Law360 (March 17, 2020), https://www.law360.com/articles/1254082/share?section=corporate.
 Ethan Baron, H-1B: Premium Processing Suspended for Upcoming Visa Application Season, The Mercury News (March 17, 2020), https://www.mercurynews.com/2020/03/17/h-1b-premium-processing-suspended-for-upcoming-visa-application-season/.
 Jason Boyd & Greg Chen, AILA Policy Brief: USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration, AILA (Jan. 30, 2019), https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-uscis-processing-delays.
 Issie Lapowsky, ‘God is Really Testing us’: Immigrant Tech Spouses Sue the Administration over Visas, Protocol (March 2, 2020), https://www.protocol.com/delays-h1b-visa-holders.
 See generally Employment Authorization for Certain H–4 Dependent Spouses, Fed. Reg. 10,284 (Feb. 25, 2015) (to be codified at 8 C.F.R. pt. 214 & 274a) (amending the Department of Homeland Security Regulations to extend employment authorization to dependent spouses of H1-B visa holders).
 Jackson Lewis, H-1B Visa Processing Delays Underscored by Extraordinary Need for Healthcare Workers, Nat’l L. Rev. (Feb. 12, 2020).
 Lapowsky, supra note 6.
 Lewis, supra note 8.
 See Mgmt. Health Sys v. United States Dep’t of Homeland Sec., Case 1:20-cv-00330, 3 (D.D.C., Feb. 2, 2020) (noting the company had been waiting 311 days for USCIS to adjudicate the visas).
 Lapowsky, supra note 6.
 Stuart Anderson, Court Spotlights Trump Plans to Stop H-1B Spouses From Working, Forbes (Nov. 13, 2019), https://www.forbes.com/sites/stuartanderson/2019/11/13/court-spotlights-trump-plans-to-stop-h-1b-spouses-from-working/#55f0acc3754c
 Jarvis, supra note 1.
 United States Citizenship & Immigration Servs., USCIS Response to the Coronavirus Disease 2019 (COVID-19), https://www.uscis.gov/about-us/uscis-response-coronavirus-disease-2019-covid-19 (last updated March 25, 2020).
 See, e.g. Business Immigration and Coronavirus: Latest Announcements from USCIS and DOL, Nat’l L. Rev. , https://www.natlawreview.com/article/business-immigration-and-coronavirus-latest-announcements-uscis-and-dol (March 23, 2020).