The Long Night
The most common concern that I hear from clients is dealing with wait times and delays. In the immigration world, we wait for USCIS to make decisions on applications and petitions, we wait for priority dates to come current, we wait for interviews and hearings to be set in Court, USCIS field offices and U.S. Consulates, among other things. We also deal with delays caused by administrative processing, background checks and delays due to fluctuations in filing for immigration benefits.
It is not uncommon to wait years for a priority date to come current. For example, brothers and sisters of U.S. citizens from Mexico may wait more than twenty years to be eligible for a green card. At the same time, it is not uncommon to wait all that time only to incur further delays in background checks, such as DNA, criminal, medical and security checks.
In years’ past, the processing times for certain visa and green card categories rarely changed. Foreign fiances could be in the United States with a green card in less than a year. Immediate relatives of U.S. citizens could obtain work and travel authorization in as little as two months. Similarly, a green-card holder who filed for citizenship in the spring could have naturalized in time for the election in November.
These are now dusts in the wind as things like national security, immigration fraud, immigration review, congested court dockets, overwhelmed filings and local, federal and national investigations have gone up in size and manner. This has resulted in what I call The Long Night, as a reference to the Winter season which lasted a whole generation in the acclaimed Game of Thrones. Now, we see waiting times that take years and delays that take months. We see U-victim and cancellation-approved individuals put on a long wait list. Not much can be done during these time periods.
From start to finish, some common wait/delay scenarios include:
- File a dual I-130/I-485 petition and application package, which is eligible on its face, only to have to wait up over one year to get an interview. Then, at the time of the interview, the application is further delayed for ongoing background checks.
- File an I-130, have it approved, only for USCIS to request the file back for some unknown reason. This may result in a black hole, where petitions and applications may sit for years.
- Schedule an I-129F interview with the Consulate, only for the medical exam to show potential problems and cause further delay.
- File an I-751 joint Petition to Remove Conditions, only to wait up to four years to receive an approval.
- Commit a crime, only to wait months, even years, for immigration to issue a Notice to Appear. Even in court, subsequent hearings for relief are being scheduled two-three years in the future.
- File for citizenship and wait longer than the law allows for a decision.
A few things to consider: first, most of the waiting times and delays are harmless, and an applicant or petitioner has nothing to fear except frustration. Every day, there are hundreds of thousands of petitioners and beneficiaries who need to be property vetted through multiple agencies. FBI security checks and other protocols are factors outside of USCIS personnel’s control. Adding to this, USCIS and Immigration Courts have their own backlogs in processing cases.
Second, Congress has mandated country and numerical limits for certain visa and green card categories. This changes on a monthly basis, and it is not uncommon for timelines to move up, or slow down, for months at a time. This is why some countries, such as Mexico, Philippines and India, have different, sometimes longer wait times for family and employment based immigration.
Yet, is there anything that can be done? In certain situations, there are two common forms of relief: a Writ of Habeas Corpus and a Writ of Mandamus. If a non-citizen is detained, he or she may challenge unlawful detention by filing a Writ of Habeas Corpus. If successful, a non-citizen will not need to wait in jail while the immigration case is pending. However, this is usually very limited and does not apply to everyone. There are also options if a non-citizen has been waiting for an immigration benefit outside of normal or reasonable wait times. A non-citizen may sue the United States agencies responsible for the delay by filing a Writ of Mandamus. Although a judge cannot force the U.S. government to grant an immigration benefit, a judge can force the U.S. government to make a decision.
If you think the wait times and delays in your specific case are unreasonable or outside the given processing times in the U.S. Visa Bulletin, please give me a call or contact me today!