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How the U.S. government sabotaged a program to streamline legal immigration

How the U.S. government sabotaged a program to streamline legal immigration

Mar 22, 2023 by AFPF

American principles of liberty and self-governance have long rewarded those who work hard, tap into their talents, and discover better ways of doing things. Not only have these ideals empowered countless Americans to contribute in ways that advance their own sense of purpose, but they have also drawn the world’s most ambitious people to our shores with the hope that they can join in our culture of entrepreneurship.

Although our nation’s ideals continue to attract top talent from around the world, years of unchecked red tape in the visa petitioning process have effectively locked Americans out of their own immigration system.

As a result, U.S. entrepreneurs, business owners, and scientists are offshoring their operations, enabling countries such as Canada, India, and China to reap the benefits of new inventions and domestic employment opportunities that would have otherwise been created on U.S. soil.

U.S. Citizenship and Immigration Services needs to develop efficiencies that relieve petitioners of unnecessary administrative burden.

In 2016, USCIS sought to do so by creating a Trusted Filer program, otherwise known as the “Known Employer pilot program,” to reduce paperwork and save time on adjudications for employers enrolled in E-Verify. USCIS stated on its website that it would “publicly announce the results” of the Trusted Filer program on its completion.

But on December 31, 2020, the agency terminated the program without explanation.

The Trusted Filer program’s experiment in red tape reduction

The program allowed employers to pre-certify information about themselves to streamline the petitioning process for both green cards and non-immigrant work visas.

The green card categories and aspects of the green card petitioning process that employers could pre-certify themselves for are:

  • Green cards designated under the “outstanding professor and researcher” category — Employers can pre-certify that they meet the sponsorship requirements of employing three or more full-time researchers and that the employer has documented accomplishments in an academic field.
  • Green cards designated under the “multinational manager and executive” category — Employers can pre-certify that they conduct business in other countries either as the same organization or through different subsidiaries, parents, or affiliates of the organization. An employee that works for any of these affiliated organizations will meet the requirements of being an “intracompany transfer.”
  • Green cards designated under “ministers of religion” and “certain religious workers” categories — Employers can pre-certify that they meet the requirement of maintaining 501(c)(3) tax exempt status and are affiliated with a religious denomination. The employer may also pre-certify information on how the employer compensates employees for the job position in question.
  • Ability to pay the “proffered wage” for certain employment based green cards — Employers can pre-certify their ability to pay the wage that they are offering to the individual they seek to sponsor. Eligible green card categories for this pre-certification include:
    • The aforementioned “outstanding professor and researcher” and “multinational manager and executive” categories.
    • Advanced degree holders and employees with “exceptional ability” categories.
    • Professionals holding bachelor’s degrees and “skilled worker” categories.

The non-immigrant visa categories and aspects of the work visa petitioning process that employers could pre-certify themselves are:

  • L-1 visas for multinational executives, managers, and employees with “specialized knowledge” — Employers can pre-certify that they conduct business in other countries either as the same organization or through different subsidiaries, parents, or affiliates of the organization. An employee that works for any of these affiliated organizations will meet the requirements of being an “intracompany transfer.”
  • R-1 visas for religious workers — Confirmation that the employer is recognized as a 501(c)(3) tax exempt organization and is affiliated with a religious denomination. The employer may also provide information on how the employer will compensate the employee.
  • H-1B visa cap exemptions and fee waivers for research organizations and institutions of higher education — Employers petitioning H-1B workers performing services in “specialty occupations” may pre-certify themselves for the visa cap and fee exemptions by pre-certifying that they meet the eligibility requirements of being a nonprofit or government research organization, an institution of higher education, or a nonprofit affiliated with an institution of higher education.
  • Supplementary documents to mitigate agency requests for additional evidence — Employers petitioning for workers under the H-1B, R-1, or TN visa categories may upload various “supplementary” documentation including marketing materials, annual reports, and other paperwork that USCIS usually requests despite not technically being required.

USCIS offered contradictory explanations for ending the Trusted Filer program

In an omnibus package signed into law on March 2022, Congress required USCIS to release the results of the program by May 2022. Such results were to include “information regarding any cost-savings to the agency, cost-savings to petitioners, and operational and security benefits to the agency.”

In October 2022, USCIS publicly posted a document dated August, 11, 2022, providing an explanation for discontinuing the Trusted Filer program. The agency claimed that the “lengthy process” for determining whether an employer met the eligibility requirements for pre-certifications “took up to 6 months to complete.”

Yet in the same report, USCIS asserts that the pre-certifications did not reduce adjudication times because “officers evaluating petitioners and employers were extremely well-known to USCIS.”

The agency report concluded that the Trusted Filer program’s time-consuming vetting process “translated into an overall increase in agency costs.” But given that USCIS adjudicators were so familiar with the participating employers that the normal adjudication process went nearly as quickly as the pre-certifications, it appears that such a rigorous and time-consuming pre-certification process was never necessary to begin with.

USCIS concealed employer support for a permanent Trusted Filer program

USCIS’s public report falsely claimed that participating employers reported “no meaningful impact” that resulted from the Trusted Filer program. But agency documents obtained by Americans for Prosperity Foundation (AFPF) revealed that all six of the employers who used the pre-certifications told USCIS that they wanted the Trusted Filer program to be made permanent.

One participating employer, Schaeffler Group, reported that the pre-certifications offered by the program “streamlined their process” and was “one of the best things that USCIS has done in a while.”

Another participating employer, which remained anonymous, used the Trusted Filer program to pre-certify roughly 100 petitions. This employer concurred that the program was “one of the best things that USCIS has done,” and stated that USCIS made fewer requests for additional evidence when adjudicating their pre-certified petitions.

Although the participating employers also cited various problems with the pilot, such as “technical issues,” a counterintuitive user-interface, and lack of coordination with U.S. Customs and Border Protection (CBP), USCIS’s omission of the program’s overall positive reception from employers paints a misleading picture regarding the risks and benefits of pursuing a permanent program.

USCIS is not meeting commitments to streamlining the visa petitioning process

USCIS also justified its termination of the Trusted Filer program with the assurance that “technology development efforts currently underway will ultimately achieve many of the [Trusted Filer] pilot goals.” Such objectives would include electronic filing, user accounts with petitioner information and electronic storage for easy resubmission of evidence.

However, as of this report, USCIS has only made 15 of its over 100 application types available for electronic filing. In its 5-year digitization plan released in 2021, the agency made no mention of the pre-certifications that a Trusted Filer program would enable.

Although USCIS states in its plans to dramatically hike employer fees that it intends to “streamline the adjudication of immigration benefits” and use fee revenue to expand electronic filing to include more forms, the agency has yet to make significant progress after receiving millions of dollars in appropriations to reduce backlogs.

In addition to USCIS’s delayed expansion of digital filing, the agency has also diverted more of its resources to increasing the paperwork required for petitioners to prepare.

According to a 2021 report from the Government Accountability Office, “policy changes result[ed] in increases in the length of USCIS forms and  expanded interview requirements.” Overall, USCIS has added over 400 pages to its petitions from 2008-2022.

The benefits of restarting a Trusted Filer program

Despite the little public attention the Trusted Filer program received, many organizations have requested that it be resurrected.

When USCIS asked the pubic to submit comments regarding ways to eliminate barriers in the immigration system, the American Immigration Lawyers Association asked the agency to “revisit the concept of a trusted filer program as this would help with more efficient processing of immigration benefits.”

The Society for Human Resource Management also submitted a comment urging USCIS to “revisit and broaden” the pilot program to eliminate the need for repeat adjudications.

If USCIS revisits the Trusted Filer program, it should make a pilot accessible to smaller sized firms. According to business immigration lawyers interviewed by AFPF, USCIS applies greater scrutiny on smaller and medium sized firms despite having track records of petition approvals.

One lawyer who works with medium-sized companies told AFPF that smaller businesses will often need to resubmit over 200 pages of information to verify their legitimacy and ability to pay the beneficiary the wage offered.

Such documents include stock purchase agreements, marketing materials, copies of meeting minutes, and other items that employers would have already provided to USCIS for previous visa sponsorships. USCIS should consider restarting the pilot program and include small and medium-sized firms as the agency originally intended.

Policymakers should also consider expanding the Trusted Filer program for other agencies that handle employment-based immigration. Creating an interagency pre-certification program can reduce duplicative processes both within and across different agencies.

The ability for sponsors to pay the proffered wage, for example, could be used by DOL as well as USCIS in the petitioning process.

In a recent survey of 433 employers looking to hire international talent, 61% of respondents cited DOL as their biggest barrier in the visa petitioning process. The same survey found that 25% and 14% of employers considered USCIS and the State Department to be the biggest barriers toward sponsorship, respectively.

The streamlining measures underpinning the Known Employer program are tools the Biden administration should prioritize to ensure a healthy, fiscally prudent, and accountable immigration system.

FOIA Request and Lawsuit

March 10, 2022 AFPF FOIA Request

April 26, 2022 AFPF FOIA Lawsuit

FOIA Productions

COW2022001312_slot_6_redacted.pdf (33 pages)

COW2022001312-responsive-records-2-redacted-002.pdf (8 pages)

COW2022001312-responsive-records-redacted-002.pdf (68 pages)

COW2022001312-redacted-supplemental.pdf (48 pages)

COW2022001312-Additional-Records_redacted.pdf (69 pages)

Kevin Schmidt is director of investigations at Americans for Prosperity Foundation.

Sam Peak is policy analyst at Americans for Prosperity Foundation.