Curbing Entropy in my Practice – Life Lessons About Matters Pending Before the Service
“…being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains.” A client was quoting Dickens in Bleak House, but I didn’t know it then. He was referring to the delay in adjudicating his I-485 Application.
I am not a pessimist but being an immigration lawyer it often feels like we are powerless to change the order or reduce the entropy of any and all matters pending before the U.S. Citizenship and Immigration Services (USCIS)! I have not stopped trying, but often it seems futile.
Take for instance, the case of the two almost identical adjustment applications filed on the same day last year. They were from the same Country of Birth, state, and city of residence; contained the same job profiles, employer, family size, priority date, documentation, representation, etc. and yet…while one was approved last week, the other remains pending. I understand that a lot depends on the adjudicator assigned to a certain application, but how does one explain this, with a straight face, to a very anxious and rather irate client?
In fact, in response to an Ombudsman’s Report highlighting delays in USCIS processing, then Acting Deputy Director Tracy L. Renaud acknowledged, “that our customers deserve timely, professional, and accurate service each and every day.” It feels like things should be different in 2021. The Government Accountability Office (GAO) recently released a report on actions needed to address USCIS’ pending caseload; the GAO found that the pending caseload grew an estimated 85% between FY2015 and FY2020. The office made six recommendations and DHS concurred with five.
Those who aren’t immigration attorneys may not know that there has been an effort to bring immigration into this century; attempts to automate immigration benefits processing was started almost a decade ago in 2012. USCIS deployed the Electronic Immigration System (ELIS) to automate roughly 90 types of immigration benefits and services for online customer filing. As of 2016, when a report was released by the Office of the Inspector General as part of an audit, only two benefits had been automated. Even today, only about a dozen forms are available for online processing. Of these 12 forms, the AR-11, change of Address and G-639, FOIA request, should be discounted because they don’t result in a benefit. In other words, only 10 truly substantive USCIS forms are available for online processing.
Other Government agencies like the Department of Labor (DOL) and the Department of State – National Visa Center (NVC), have adopted online processing, but with mixed results. This is because all immigration is sequential and the efforts at efficiency by one agency hardly solve the failings of another. Moreover, both the DOL and NVC processes continue to experience significant glitches resulting in multiple requests for the same information and lengthening delays that appear endless.
Although one can pay $2,500 to “premium process” some petitions, that may not be a solution that works for everyone.
This situation is further compounded by the rather flawed system of estimating processing times. In 2018, the USCIS launched a novel attempt to better estimate processing times. This involved an “automated methodology” as applied to the following four types of applications:
- N-400, Application for Naturalization
- I-90, Application to Replace Permanent Resident Card
- I-485, Application to Register Permanent Residence or Adjust Status
- I-751, Petition to Remove Conditions on Residence
For immigration attorneys practicing these types of cases, it is puzzling how the Service came up with this “automated methodology”, or for that matter what criteria is currently being used to calculate processing times for the rest of the pending cases. More worrisome is the complete lack of accountability and whether any efforts were being made to expedite actual processing. The American Immigration Council came up with a Fact Sheet explaining the problems of this “new and improved” system of calculating processing times. The Fact Sheet correctly identifies one very important failing; one that practitioners like me must deal with constantly. With the current system, there is no way of knowing processing times for “concurrently filed applications”. For instance, an Immigrant Petition (I-140) filed with an Application to Adjust Status (I-485) for an employment-based case could languish for years since processing of the latter application depends on the final adjudication of the former.
During the pandemic, several immigration attorneys were forced to physically enter their offices, remain in close contact with colleagues, and deal with a mountain of paperwork, not to mention mail, faxes (yes, the USCIS continues to fax Requests for Evidence and other documents) and try to stay safe! The USCIS was unsympathetic, requiring paper filed documents even as the entire country resorted to video conferencing, telecommuting and remote office work. Even when allowing a minor concession for signatures, the USCIS tersely reminded practitioners, “Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.”
Now, with things finally getting better can we expect some “significant” effort towards more efficiency? AILA offers a number of recommendations to do exactly that; most have yet to be followed by the Biden administration. Perhaps, the Service could follow the OIG’s recommendation of improving stakeholder involvement and seek meaningful ways to operate more collaboratively to reduce backlogs and offer immigrants much needed relief? One can but hope…for change!
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AILA members with clients looking for answers about delays may find the Client Flyer of use: Why Is Your Case Taking So Long? USCIS Processing Delays Have Now Hit Crisis Levels