Opinion

USCIS sued over extreme delays in processing waivers

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

February 5, 2023 | 12:00am

On Jan. 23, 2023, a class-action lawsuit was filed against US Citizenship and Immigration Services (USCIS) over its extreme and unreasonable delays in adjudicating (processing and making a decision on) provisional waiver applications by 248 waiver applicants on behalf of a class of tens of thousands more provisional waiver applicants.

According to the lawsuit, filed by the American Immigration Counsel, the processing time of provisional waiver applications now takes about three years, whereas these waiver applications were previously decided in under five months. The plaintiffs asked for a court order compelling USCIS to decide pending provisional waiver applications within 30 days and future provisional waiver applications within six months.

By way of background, certain people are ineligible to adjust status (apply for a green card) in the US. These include:

• People who entered the US without inspection, crewmen and people who are out of status and do not have the benefit of Section 245(i). (Note: in some cases, a person who is out of status can get a green card in the US if petitioned as an “immediate relative” by a US citizen spouse, child over 21 or parent if they are under 21.)

• People who entered as K-1 fiancées but did not marry the US citizen who petitioned them but instead obtained a green card through a different petitioner.

If a person is ineligible to adjust status in the US, they must travel abroad and apply for their immigrant visa at the US embassy. However, if they have been out of status for more than six months and then depart the US for consular processing, they could be subject to the 3/10-year bar. The provisional waiver regulations allowed people to apply for a waiver of the 3/10-year bar while still in the US and before they depart. If the provisional waiver is approved, they could then travel abroad to apply for their immigrant visa without triggering the 3/10-year bar. The problem is that they cannot leave the US unless and until the provisional waiver is approved. And that’s why the lawsuit was filed against USCIS.

Since it is taking USCIS over three years to process provisional waiver applications, “USCIS’s unreasonable delay in deciding their applications for a provisional waiver – a required step before they can be set for their consular appointment abroad – has left plaintiffs and class members stuck in a bureaucratic nightmare. They cannot work and remain susceptible to removal from the United States while waiting for a decision on their waiver applications.”

In addition, while waiting for a decision from USCIS, waiver applicants cannot work lawfully and have no protection against being removed/deported from the United States. All such waiver applicants are suffering emotional and financial harm from USCIS’s unreasonable delay. They cannot make plans for the future with their families because they cannot move forward with obtaining legal status. They also lose economic opportunities because they have no work authorization while USCIS delays processing the provisional waiver application.

Unfortunately, for many people hoping to legalize their status, USCIS’s delays occur not only in connection with processing provisional waivers but with other immigration applications and petitions as well. Some family-based petitions can take a year or more to process, including immediate relative petitions by US citizens. There are also unreasonable delays for people applying for adjustment of status in the US.

We will closely monitor the outcome of this lawsuit, because if successful, it could not only benefit those who have applied for provisional waiver, but it would also send a message to USCIS in connection with processing other petitions and applications and make USCIS realize that people suffer from these delays, and their lives are in limbo while they live each day in fear and uncertainty.

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