Steve Pazan Notice to the Industry on the Likely Affect of Coronavirus on Adjudication, March 20, 2020

Industry Colleagues:

PRIORITY ONE these days is staying healthy, but some EB5 clients are still paying attention to USCIS, and have asked me whether I think the Investor Program Office is likely to adjudicate any petitions, NOIDs, or RFEs while we are all socially distancing ourselves. IPO is Delphic in the best of times, so I may as well share my speculation that it will be an even slower pace than we have seen recently, and may stop altogether as practical concerns make it harder for adjudicators to get files to work on. 

While the Field Office Directorate at USCIS has suspended most operations that involve direct public contact, and the Department of State has suspended all routine visa operations, most of IPO’s work is done mostly on paper. So why couldn’t it continue via telework?

Much of the IPO adjudication already takes place by telework. As of my departure from the IPO, I was working only one day per week in the office in Washington, and four days from my home 125 miles away in southern New Jersey. While employees loved telework, there was belief (which I shared), that one day per week in the office was not enough to develop esprit de corps and institutional practices. Let’s assume that some of the inconsistency seen in adjudication is the fault of telework. Regardless, IPO adjudicators are accustomed, capable, equipped, and most are authorized to work from home.

Little has changed since I was an adjudicator, as far as I know. As a practical matter, the telework situation required the adjudicator to transport very large files to and from home. In the case of Regional Center I-526s, a week’s worth of work might require 4 banker’s boxes to be lugged around. So the maximum duration of work that can be transported without hernias and broken auto shocks is probably about two weeks’ worth. But while full telework is certainly doable, we must consider:

• Adjudicators need to be able to drive to IPO to pick up files, and mobility may soon be curtailed;

• The people who manage the files for the adjudicators need to be able to get to work, too, and they are not government employees. I have no idea how the contract under which they work covers such a situation;

• Experts tell us that COVID19 remains viable on paper and cardboard for only a few hours, so presumably, any file left alone for a while will be safe to handle, even if it was contaminated;

• Any materials filed prior to the crisis should be expected to be virus free. That includes most un-worked I-526s;

• Adjudicators do not work in a vacuum. They have families. I have heard that other USCIS adjudicators are being granted leave. For example, a friend from a FO has a pregnant wife. He has been told to request medical leave in order not to bring contaminants home. No work for him; and

• Another friend at a different FO says he expects to be told to stay home, and that all the backlogged paper is exhausted. 

To summarize, I expect that, if the crisis continues unabated, most adjudication will stop or slow to a trickle in about 2 weeks due to attrition in the work force and gradual loss of access to physical files, unless the leadership at IPO and USCIS takes control and adopts flexible solutions. The solutions cannot be one-size-fits-all, because IPO, while part oil the FOD, is not like the other Field Offices. But these cases are not a priority right now, so I think this is lost time for anyone with a pending I-526. 

My last filing is a NOID response pending since March 6. That will be the test of my speculation!