Federal Lawsuits for Long Delays in Pending Cases

In the past 2 years, it has become more and more apparent that USCIS processing times have gotten out of control, as delays in processing cases have become more and more frequent.  Such delays not only cause headaches and anxiety (waiting more than a year to receive their green card) but can also be financially devastating (being unable to work until the EAD is mailed out).  In a House Judiciary Committee oversight hearing on July 19, 2019, Marketa Lindt, president of the American Immigration Lawyers Association (AILA), testified that “[USCIS’s] average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. Virtually every product line lags – in FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014.  For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency’s overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.”  According to Lindt, such delays were as a result of: (1) universal, unnecessary in-person interview requirements that USCIS began implementing in October 2017 for all individuals seeking green cards through their employers; (2) USCIS’s October 2017 rescission of longstanding guidance under which adjudicators deferred to prior approvals of temporary benefits when processing requests to extend those benefits absent error or a material change in circumstances; (3) spikes in unnecessary Requests for Evidence (RFEs) from the agency that freeze case processing and drain adjudication resources; (4) “extreme vetting” of immigration cases beginning in 2017, despite USCIS’s failure to establish that prior vetting procedures were inadequate or that the new procedures have advanced any actual security interest; (5) lengthy suspension of longstanding “premium processing” services for certain lines of USCIS applications and petitions without proper justification; and (6) the increased length of numerous USCIS forms, resulting in more time-intensive processing.  As can be seen by the chart below, there has clearly been a dramatic increase in processing times over the past 2+ years.

Possible Solutions

Cases pending outside of the normal processing times, while common, often require nothing more than a little extra patience.  However, for cases where delays are outside of the normal processing time for several months, a few options are available: 

  1. Service request with USCIS:  Once a case is outside of the normal processing times, it is possible to put in a service request on the USCIS website or by calling the customer service number.  Sometimes, a little nudge is all that is needed to get the process to the next step.  Other times, the service request produces an often useless and unhelpful “wait longer” response. 

  2.  InfoPass appointment: Previously, by scheduling an InfoPass appointment, you were able to talk in-person with an officer regarding your case being delayed.  However, the previous process of scheduling such an appointment yourself is being phased out by September 30, 2019.  Afterwards, you will only be able to get such an appointment if your call gets transferred from a tier 1 customer service representative to a tier 2 customer service representative and that tier 2 representative determines that the matter cannot be resolved.  Only then will you be permitted to schedule an in-person InfoPass appointment at the district office closest to your place of residence.

  3. Letter from congressman: Another method that is available is by meeting with or contacting someone from the staff of your member of Congress’s office and having them write an inquiry letter to the USCIS.  This often pressures USCIS to move things along faster.

  4. AILA liaison: If you or your attorney is a member of AILA, an AILA liaison could be requested to step in and see what is going on with your case through more direct contacts. However, a request can only be made if at least two service requests have been made and an inquiry from your local congressman isn’t pending. 

Despite these multiple options, none of them are guaranteed to provide a resolution or response to your case and all have various degrees of success. 

However, if you are fed up with waiting and you want to bring in the big guns, there is a fifth option.  With the help of an immigration attorney, you can file a writ of mandamus in federal court if your adjustment of status (I-485), naturalization, or asylum application has been pending far beyond the normal processing times.  While this won’t force USCIS to necessarily approve your case, it will bring the federal court system in and allow a federal judge to order USCIS to make a decision. Often times, just filing the writ of mandamus in federal court usually forces USCIS into action before the matter goes to the judge.  While filing a writ of mandamus is a costlier alternative than the options above due to the court filing fee and attorney fees, it may be the only way to prevent USCIS from dragging its feet any further. 

As USCIS continues to make things more difficult, we continue to advocate fiercely for our clients as immigration attorneys since we recognize how important and valuable immigration is to the US.  If your adjustment of status, naturalization, or asylum case has been delayed for an unreasonable amount of time, please do not hesitate to contact us at info@visatopia.com