This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
Immigration forms are forms. Traditionally, the medium for forms is paper. The U.S. immigration authorities have – laudably – been modernizing their system to accept both paper filings and online filings. This week, in a less laudable move, USCIS announced that they will shortly be accepting only online filings and almost never accept paper filings. This is a serious misstep. In this advertorial, we will discuss the USCIS proposed rule concerning online filing, the advantages and disadvantages thereof, and offer a few thoughts about what may be motivating the agency.
First, what does USCIS say? USCIS says that requiring online filing will make data “easier to receive, store, and accss,” will “enhance fraud detection,” and reduce errors in application filing and adjudication. All of that may be true. USCIS also says that online filing will “accelerate the shift to electronic fee payments.” That isn’t true; USCIS has been exclusively requiring electronic payment even for paper-filed forms for months – we told you about that almost a year ago!
Our view is that the main advantage of the system is probably improvements in putative (and actual) fraud detection. USCIS’s most scalable tool for detecting fraud is its ability to compare applications filed at widely disparate times. If an asylum application based on membership in a banned political party is filed in 2005, and asylum granted in 2012, and the asylee claims never to have belonged to a political part in his application for adjustment of status filed in 2026, that raises important questions for the adjudicator. Detection of the variance in a paper-based system is much harder than in a database-based system. (There is a question in the asylum application about membership in political parties, and there is a question in the green card application about political parties: make the match!)
The disadvantages of electronic filing are also significant.
The first and most significant disadvantage of online filing is the government’s limited ability to build (and maintain) a filing system that works. The State Department’s visa application processing system (the Consular Electronic Information System, or CEAC) goes down for scheduled and unscheduled maintenance quite frequently. USCIS’s current infrastructure, although far better than CEAC, also has its problems – unexplained timeouts, wonky labeling for evidence, and form fields which do not match the actual forms are all part of the experience.
A second disadvantage of online filing is that it expands the gap between the haves and the have-nots. USCIS already charges a supplemental fee – typically, $50 – if you choose to file an application on paper. Applicants who file on paper typically are older, have fewer financial resources, and are less skilled with computer systems. Applicants who cannot presently file on paper are not going to learn how to create an online account with two-factor authentication – instead, they will turn to a lawyer (in the best case) or an unsavory document preparer (in the all-too-common case) to do it for them. That will increase fees for those who are least able to afford them.
In July, we handled a Freedom of Information Act (FOIA) request for a man who was in the hospital. The USCIS FOIA system already requires that applicants file online, so our experience with it is a fair preview of what all applicants can expect in the future. Our pro bono client is a foreign national with a terminal illness, and he wants to go home to die; our role was to see whether we could obtain documentation, via a FOIA request, which would help him to reacquire a foreign passport.
In the Paper Era, we would have either visited the pro bono client in the hospital ourselves to complete the form, or we would have sent a friend or relative to complete the form with him. In the Online Filing Only era, we had to haul one relative into our office – to see the form online – and make sure that there was someone else on the other end of the line to help the bedridden patient with his phone. It took two appointments, which is far longer than than a paper form would have.
What will USCIS do about people who genuinely cannot create an online account? The solution is, as is traditional in government, yet another form. This form (“Form I-936, Request for Waiver of E-Filing Requirement”) will be filed in advance of the benefit request, with an explanation of why filing online would constitute an “undue hardship.” What’s an undue hardship? The text of the interim final rule suggests that almost nobody will qualify: “[i]f the requestor does not have personal access to the internet, the requestor must explain why he or she cannot find other ways to access the internet (for example, through public libraries, community centers, friends, or family). Being unfamiliar with the USCIS e-filing system or not having an online account will generally not be enough to establish a requestor qualifies for a waiver, particularly because as discussed previously in this preamble, public libraries provide patrons access to the internet and often offer digital literacy training.” In other words, if you live anywhere near a public library, USCIS won’t allow you to use paper. Just learn to code!
In rare cases, USCIS will approve the waiver request and send the applicant a notice allowing for paper-based filing, but “a waiver approval notice will be valid for 30 days from its date of issue for new filings.” Why? Immigration forms are lengthy, and it often takes weeks or months to gather the required secondary documentation. USCIS will, we expect, take many months to determine whether a paper-based filing waiver is granted or denied. Why approve it with an attached short-burning fuse?
By the way, in its latest love letter to the Immigration Bar, DHS notes that if an applicant has a lawyer, he de facto is ineligible to file forms on paper. “DHS expects certain groups will generally not be eligible for a waiver, such as requestors who have legal representation.” The notion seems to be that the lawyer will create an account for the client. Many firms won’t mind that – a pain point for the client is a revenue generator for the firm – but low-bono providers and nonprofits will struggle to maintain the same level of services without raising prices or decreasing access.
In sum, it seems that USCIS’s new rule is likely to make life more convenient for the agency and more challenging for individual immigrants, particularly those at the lower end of the economic spectrum. Tax filing is a reasonable analogue. Most Americans file their taxes online, but a substantial minority, for understandable reasons, struggle with the online filing system and prefer to use paper. The IRS does not penalize them. USCIS should not penalize similarly situated immigrants.
