United States Citizenship and Immigration Services (USCIS) has been plagued by unprecedented processing delays and backlogs that not only become a burden to AILA members and their clients, but to the agency itself. While applications and petitions across the agency have been affected by these delays, nowhere is it more evident than in the processing of I-601A, Application for Provisional Unlawful Presence Waivers. Throughout the past several years as a member of the AILA Government Relations team, I have observed through direct experience that these delays are far more than just an unfortunate inconvenience. For many, they represent personal hardships, separated families and deferred dreams. The most difficult part is knowing that much of this pain, suffering and disappointment could be avoided if only USCIS could process benefits requests in a timely manner by simply adhering to its own mission statement.
By way of background, the American Immigration Lawyers Association (AILA) has several advocacy and policy priorities, two of which are to hold USCIS accountable to ensure the agency remains true to its mission to provide prompt, consistent and fair adjudications to its stakeholders, and to advocate for the relief from extreme case processing delays and backlogs. For AILA to address the concerns facing members and their clients, and work towards advancing our advocacy and policy priorities, it is imperative that we hear from our 16,000 + members on how ongoing and emerging problematic agency trends are impacting their clients.
One tool that AILA uses to collect feedback and examples of agency issues and trends is a “Call for Examples,” which is a survey we send to the membership to assess a particular issue’s depth and breadth. And that’s exactly what we did when we began to hear reports of extreme processing delays related to Form I-601, Application for Waiver of Grounds of Inadmissibility and Form I-601A, Application for Provisional Unlawful Presence Waiver, with a specific focus on the latter. The examples flooded in.
Grounds of Inadmissibility and Provisional Unlawful Presence Waivers
For context, the Immigration and Nationality Act (INA) sets forth numerous grounds for inadmissibility, which essentially is a list of specific categories of individuals who are not permitted by law to enter or remain in the United States. These grounds of inadmissibility include health, criminal activity, public charge, national security, and unlawful presence, among others. For a complete list of inadmissibility categories, visit USCIS.gov, under Unlawful Presence and Inadmissibility.
Individuals who have accrued certain statutorily defined periods of unlawful presence, meaning those not in a period of authorized stay in the U.S., can be found inadmissible and are subject to three-year (if over 180 days) or ten-year (if over one year) bars under INA 212(a)(9)(B). If an unlawful presence ground of inadmissibility is applicable, immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents (LPR) may apply for a waiver using Form I-601A, Application for Provisional Unlawful Presence Waiver, before departing the U.S. for an immigrant visa interview at a U.S. Embassy or Consulate abroad. Form I-601A only applies to those individuals who are inadmissible for having accrued the requisite period of unlawful presence. For other inadmissibility categories, individuals must apply for a waiver using Form I-601, Application for Waiver of Grounds of Inadmissibility.
AILA Call for Examples: Long Pending I-601 and I-601A Waiver Applications
AILA first began to hear reports of long-pending I-601 and I-601A waiver applications via various internal listservs, and shortly thereafter issued a Call for Examples to the general membership seeking additional information and feedback. In just 48 hours, AILA members had submitted an unprecedented 300+ case examples of long pending I-601 and I-601A applications. The parameters used to seek relevant examples of Form I-601 and I-601A applications were of those pending with USCIS for more than 12 and 24 months, respectively, as that was the agency’s posted processing times when launching the survey in November 2022. Out of the 307 case examples received, 287 were of long-pending I-601A applications (“long-pending” indicates I-601A applications pending longer than 24 months). That’s roughly 93% of all case examples submitted.
For context, the USCIS Historical Processing Times page demonstrates the national median processing times from fiscal year (FY)2017-2022 for all USCIS offices. Below is an excerpt that provides the median reported processing times, measured in months, for Form I-601A from (FY)2017 to 2022 over the past six fiscal years. Fiscal Years run from October 1 to September 30, i.e., 10/1/21-9/30/22.
|Form||Form Description||Classification or Basis for Filing||FY 2017||FY 2018||FY 2019||FY 2020||FY 2021||FY 2022|
|I-601A||Application for Provisional Unlawful Presence Waiver||Provisional Waiver of INA 212(a)(9)(B)||4.6||4.5||8.7||11.2||17.1||31.7|
This data indicates that from (FY)2017 to 2022, processing times for Form I-601A increased an astounding 590%, and from (FY)2021 to 2022, processing times had an 83.3% increase in just one year. While the average processing time seems to continually increase, so does the number of pending I-601A applications. According to the latest data published by USCIS, there are 121,793 I-601A applications pending with the agency. While the onset of COVID-19 and agency staffing shortages were certainly contributing factors to the increase in processing times from (FY)2020 to present day, it is an insufficient justification for all the delay and resulting hardship. Those pending applications represent thousands of individuals left in an extended limbo.
Behind every long pending case is an individual whose life may have been forever changed. Foreign nationals and their U.S. citizen or LPR relatives are facing incredible hardships due to USCIS processing delays and backlogs related to I-601A waiver applications. One such applicant, whose waiver request has been pending for almost 36 months, has a critically ill parent abroad and cannot travel for fear of being inadmissible to the United States and subject to a ten-year bar on reentry.
Another applicant’s qualifying relative is terminally ill and if the applicant does not consular process before their death, the applicant may no longer be eligible for the waiver. Relatedly, one applicant’s qualifying relative passed away nearly three years after their underlying petition was filed. Because the qualifying relative was not the petitioner, there may be no relief available under INA section 204(I) for Surviving Relatives or Humanitarian Reinstatement Protections. Due to USCIS delay, this individual was stripped of a potential benefit.
Several other I-601A applicants noted extreme financial hardship due to their inability to secure work authorization. Many of these individuals are the sole financial support for their U.S. citizen or LPR relatives, meaning the number of impacted individuals goes well beyond the data published by USCIS. I-601A waiver applicants and their impacted family members have been harmed by inefficient agency policies whose implementations have caused catastrophic backlogs.
The ripple effect of USCIS’ excessive delay in I-601A processing is as profound as it is immeasurable and AILA will continue to advocate for the reversal of harmful and inefficient policies and for the implementation of reforms that improve processing times overall. It is essential that we now compel USCIS to fulfill its mission and provide reasonable processing times for not only I-601A waivers but for all applications and petitions.