As many of our AILA members and their clients know, the U.S. immigration system can be akin to an amusement park – thrills, horrors, and scary twists and turns. One particular ride that features a number of these twists, turns, loops, and unknown drops is the U.S. Citizenship and Immigration Services (USCIS) Processing Times Roller Coaster. So hop on, make sure the bar is lowered and snug, and keep your arms and legs inside the car at all times. Here we go!
As we begin our leisurely ascent, let me give you a little bit of background on the USCIS Processing Times Roller Coaster. Over the past several years, USCIS has adjusted the information it displays publicly concerning its processing times, how it calculates this information, and the mechanism by which customers can follow up. In a May 2022 press release, USCIS announced changes to its processing times page, claiming to have simplified how the information is viewed and improved transparency into how it is calculated. The page, available publicly here, allows customers to check processing times in which 80% of similar cases are adjudicated based on the form type, category, and the USCIS field office or service center where it is located. In addition to this page, USCIS offers multiple additional pages containing processing times data, including notably a historic processing times page showing the median processing time (50th percentile) by form type and myProgress pages for applicants that, according to the agency, provide a “personalized” processing time based on “similar case types”.
While USCIS continues its efforts to reduce its crisis-level processing delays, transparency and accessibility for those with long-pending cases continue to be of significant importance. One of the key challenges for all of the agency’s customers, including immigration attorneys, is estimating the time it will take for the agency to process an application or petition and when they will be able to follow up should the case fall outside of the agency’s posted processing times. The agency’s efforts to provide more information are admirable, but the numerous presentations and calculations provided can be confusing and the follow-up process particularly frustrating.
As we approach the top of our lift-hill, let’s take the example of a category c(9) application for work authorization for applicants with a pending adjustment of status at the Vermont Service Center for 12 months. When we select the appropriate application type, category, and service center from the processing times page, it indicates that 80% of similar cases have been processed within 11.5-months. As our car finally reaches the top, we scroll down to the “When can I ask about my case” section and enter our receipt date, October 3, 2022. Even though the case falls outside of the processing time listed, the agency insists on allowing inquiries only after a case exceeds the time it takes for 93% of cases to be adjudicated. According to the website, this means we cannot make an inquiry with the agency until November 21, 2023 –and drop!
But there’s more to this roller coaster. A review of the website reveals some additional twists and turns that can leave an attorney and their clients with bouts of vertigo. The USCIS Historic Processing Times page contains median processing times for certain form types. This is the time required to adjudicate 50% of cases. On that page, it appears the median processing time for a c(9) EAD is only 5.5 months, contrasting starkly with the “real time” processing times page and causing further confusion. Statistics provided by the agency paint a similar picture, also using the median processing times for included form types.
Our ride concludes with a visit to USCIS’s latest addition, the myProgress page. This page is intended to, for limited form types, provide a more “personalized” processing time to applicants. While it offers personalized processing time estimates, these times cannot be relied upon for inquiries when they have elapsed, and once they have elapsed without a decision, the page may at times simply state that the case is “taking longer than expected to process” and to check the case processing times page. Even if an applicant is given a “personalized” time of, for example, three months for their EAD, inquiries are only permitted once the case surpasses the aforementioned 93rd percentile period. Adding even further complications, attorneys do not have access to the myProgress page, which can lead to significant confusion and frustration when a client is given a wholly different processing time than the attorney. All of these amount to a final, heart-pounding drop that splits our car in two before a final loop plunges both the attorney and client into respective darkness.
As we disembark and reflect on our experience, it is important to again acknowledge the agency’s efforts to provide information on its processing times. AILA appreciates the agency’s efforts to be transparent as it continues to work to address its significant backlog and processing delays. However, the agency can and should do a better job at calculating and displaying in an organized manner the spread of processing times and allow for a more reasonable follow-up process than mandating no contact until after the time it took to complete 93% of similar form types.
Last month AILA submitted feedback to USCIS on its processing time pages. This feedback included recommendations for the agency to report processing times for the 25th, 50th, and 75th percentile for each form type, to allow follow-up after a case remains pending beyond the time associated with the 75th percentile, and importantly to update processing times calculations to consider current and future caseloads rather than just past data on case completion. These are reasonable and achievable goals for the agency that will reduce confusion and improve overall customer experience.
It’s time for USCIS to replace this roller coaster with a smoother, more straightforward ride for both the clients seeking to understand the status of their case, and the attorneys representing them.