Navigating the Backlog of the American Immigration System

Written By Meghan M. Phillips, Esq.[1]

Introduction: A Case Caught in the Backlog for Ten Years

In March 2022, I litigated a case before the immigration court on behalf of an incredibly deserving asylum-seeker who had been waiting ten years to receive a decision on her case. Her hearing would decide whether she would be granted asylum, withholding of removal, or protection under the Convention Against Torture, or if she would be order removed to the country of her citizenship.

Even though recent country condition reports show that our client would likely be harmed, tortured or executed if she returned to her country, asylum is an immigration benefit, which provides access to other governmental benefits and allows asylees to petition for permanent residency after one year. Therefore, a grant of asylum is not guaranteed by an asylum officer or immigration judge: an asylum-seeker must prove they qualify for asylum, and it is also a matter of those factfinders’ discretion.

Although the client and her family knew I believed in the strength of her case and that she truly merited the immigration judge’s positive exercise of discretion, I explained that the burden of proof was ours and we needed to prepare accordingly. So, prepare we did, and it truly was a team effort. Happily, our work, which also included a motion to advance the hearing, paid off, and our client was finally granted asylum.

However, not all cases caught in the U.S. immigration system’s backlogs will end with a positive outcome; in some cases, waiting in the backlog means that the case is prejudiced or that the applicant might no longer qualify for the immigration benefit they seek. For example, country conditions can dramatically improve, causing asylum seekers to lose their case by the time they have their hearing. Evidence could be lost, or a witness crucial to the case could pass away before testifying while waiting in the backlog. Worst of all, certain types of relief require clients or their qualifying relatives to be under a certain age. For instance, for cancellation of removal, if one’s qualifying relative is a U.S. citizen child, the child will no longer be a qualifying relative if he or she reaches the age of twenty-one. Thus, it is important to not only have one’s merits hearing before the qualifying relative ages out, but to also have time for the visa to issue, which currently can take about two to three years.

Even if one does eventually receive a positive outcome, awaiting a decision on an immigration case due to the backlogs can be incredibly stressful and lead to many negative side effects. It can mean families are separated for long periods of time, businesses can be waiting long periods for workers they desperately need, and qualified applicants might not be able to travel, access health care, or other federal benefits such as financial aid for education.

State of the Backlog

Sadly, although the ten-year duration of the above-mentioned asylum case might seem unusually long, the backlogs in the American immigration system mean that long wait times are not the exception but the norm. The current estimated time for an asylum case is 58 months – in other words, about five years.[2] For immigrant visa cases, the National Visa Center (NVC) reported that in May 2022, they scheduled 28,447 applicants for visa appointments, but 421,136 eligible visa applicants are still pending the scheduling of their interviews.[3] As of February 2022, U.S. Citizenship and Immigration Services (USCIS), was reviewing more than 9.5 million pending applications.[4] Finally, the immigration courts have a massive backlog of 1.6 million cases.[5]

Causes of the American Immigration Backlog

These estimates are also sadly unlikely to improve: a number of factors mean that the backlogs are only going to grow. One of the main reasons for the backlog is the COVID-19 pandemic, which caused shutdowns of embassies, consulates, and immigration offices. However, fiscal issues and a governmental hiring freeze also contributed to backlogs with USCIS.[6]

Ricard Zuniga, the Biden administration’s special envoy for the Northern Triangle region recently predicted that the U.S. is likely to see an increase in asylum requests and immigration from Central America because three countries’ democracies are facing grave difficulties.[7] In Guatemala, an anti-corruption judge went into exile due threats against her life.[8] El Salvador is experiencing a spike of gang-related homicides, causing the government to make mass arrests.[9] Finally, the former president of Honduras, Juan Orlando Hernandez, has been extradited to the United States on drug trafficking charges.[10] Additionally, asylum requests from Ukrainians at the Mexican border are growing, due to the ongoing war.[11]

Strategies to Navigate the Backlog

So, what can be done to help you, your family or your business navigate these immigration backlogs so as to achieve your immigration goals? My most important tip is to avoid scammers or fraud notaries and find experienced and licensed legal counsel.[12] Although legal fees have a cost, doing your applications yourself or entrusting your case to an unlicensed person can have terrible consequences; not only could it cause your case to take longer, but you might also lose eligibility for immigration benefits entirely.

One reason your case might take longer is because what you file and where you file for your case matters. Knowing all the evidence needed to process your application and the proper filing address and fees can help you ensure that your application is not rejected and that you avoid Requests for Evidence (RFEs), which can make processing of your application take even longer.

Additionally, once you have retained legal counsel to help ensure your immigration application is properly filed, you can also ask him or her if any of these strategies might be right for you:

1. Prosecutorial Discretion: Lawyers with the Department of Homeland Security (DHS), who serve as prosecutors in immigration court have been directed to help clear low-priority immigration cases from the immigration court backlog by exercising their discretion in a variety of forms, including motioning to dismiss or administratively close removal proceedings, joining motions to reopen a deportation order, or not opposing immigration relief.[13] An experienced immigration attorney can help you determine if you might qualify for this, whether such a request to DHS is in your best interest, and help you file a request for prosecutorial discretion with the required evidence with DHS.
2. Motion to Advance: You might be able to file a motion to advance your court date with the immigration court. For example, in the previously discussed asylum case, our firm filed a motion to advance our client’s immigration court hearing date. This motion was granted and allowed our client to finally have her individual merits hearing on her asylum case.
3. Requesting Premium Processing: For certain employment visa categories, you might be able to file a request for premium processing with an additional fee to request faster processing of your case.[14] However, knowing whether your case qualifies, and making sure you comply with all requirements can be tricky without an attorney who can walk you through each step of the process.
4. Expedite Request: In some cases, you might also be able to request that USCIS or NVC expedite your interview. For example, if you can prove that: delay to your case could cause severe financial loss to a company or person; there is an emergency or urgent humanitarian reason to expedite your case; a nonprofit organization has an urgent need to expedite your case based on your specific role within the nonprofit in furthering cultural or social interests; it is in U.S. government interests to expedite your case; or there is a been clear USCIS error in your case.[15]
5. Case Outside Normal Processing Times Inquiry: After checking the processing times for your application to verify that your case it outside normal processing times, you may be able to submit an inquiry, asking USCIS to explain the delay or to receive an estimated time frame. An attorney can help you check your case processing time and submit such an inquiry.
6. Assistance Contacting a Member of Congress or Senator: Sometimes, a lawmaker such as your member of Congress or a senator can help make inquiries on your behalf or encourage the relevant immigration agency to expedite your case. An attorney can help you facilitate such a request.
7. Federal Litigation such as a Writ of Mandamus or suit under the APA: When an immigration case has been pending without a decision for an unreasonable amount of time, and no other course of action has led to a decision or timeline for a decision, a lawsuit against USCIS or other government agencies, might be your best option. This lawsuit, called a writ of mandamus or complaint under the Administrative Procedures Act (APA), will order the agency to make a decision on your case. However, this does not mean your case will be approved, only that a decision will be made. The lawsuit must be filed in the correct federal court with jurisdiction over your address or case, and you must show that you have exhausted all other avenues to receive a decision and that the time elapsed without a decision is unreasonable. An experienced immigration attorney can ensure that you file in the correct court and that you have tried all other strategies so as to avoid dismissal of your case. Furthermore, an experienced attorney can advise you on the risks of a negative decision and whether the time elapsed has indeed been unreasonable.

Conclusion

The U.S. immigration system backlog is extensive and navigating the backlog can be extremely difficult alone. Having an attorney help you choose the best strategy for your case can help immensely. However, above all, please do your research and pick a licensed and experienced immigration lawyer or representative for your case.

At VFN Immigrants First, we have four licensed immigration attorneys who are admitted to practice both by state bars and EOIR (the immigration court system) and who take their professional duties extremely seriously. We would be happy to help you find the best legal strategy to meet your immigration goals and help you navigate the immigration system’s enormous backlogs.

Please give us a call at 703-369-4738,visit our website, vfnlaw.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 400, in Manassas, Virginia, to learn more or make an appointment for a consultation.

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] Transactional Records Access Clearinghouse (TRAC) Immigration, Syracuse University, A Mounting Asylum Backlog and Growing Wait Times, Dec. 22, 2021, available at: https://trac.syr.edu/immigration/reports/672/.

[3] U.S. Department of State – Bureau of Consular Affairs, National Visa Center (NVC) Immigrant Visa Backlog Report, May 2022, available at: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html.

[4] Cmilo Montoy-Galvez, CBS News, U.S. immigration agency moves to cut 9.5 million-case backlog and speed up processing, Mar. 29, 2022, available at: https://www.cbsnews.com/news/immigration-uscis-case-backlog-processing-delays/.

[5] Rick Jervis, USA Today, COVID-19, surge in new cases create historic backlog jam in US immigration courts, report says, Jan. 19, 2022, available at: https://www.usatoday.com/story/news/nation/2022/01/19/covid-19-creates-huge-backlog-us-immigration-court/6581042001/.

[6] U.S. Citizenship and Immigration Services (USCIS), USCIS Backlog Reduction and Processing Times, May 18, 2022, available at: https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-backlog-reduction-and-processing-times.

[7] Cincy Carcamo, Los Angeles Times, Biden official says the U.S. will likely see an uptick in asylum requests and immigration, Apr. 2, 2022, available at: https://www.latimes.com/california/story/2022-04-02/la-me-ricardo-zuniga-on-biden-asylum-reversal-policy-central-america.

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[11] Sharif Paget and Karol Suarez, CNN, The number of Ukrainians seeking asylum at the US-Mexico border is growing by the day, Apr. 2, 2022, available at: https://www.cnn.com/2022/04/02/us/ukrainians-us-mexico-border/index.html.

[12] See my previous blog article, The Wrong Immigration Help Can Hurt, for more information about the perils of entrusting your case to an immigration scammer or notario and what you can do to avoid these scams and find licensed, legal help. 

13] Memorandum from Kerry E. Doyle, Principal Legal Advisor, Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion, April 3, 2022 (taking effect April 25, 2022), available at: https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_guidanceApr2022.pdf; Memorandum from Alejandro N. Mayorkas, Secretary of Homeland Security, Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at: https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

[14] USCIS, How Do I Request Premium Processing?, May 27, 2022, available at: https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing.

[15] USCIS, How to Make an Expedite Request, Mar. 21, 2022, available at: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer