Lawsuits asking courts to order government employees to decide long-pending immigration filings have increased sharply in the past year.
According to a recent report by the Transactional Records Access Clearinghouse (TRAC), in May 2022 the federal courts recorded 647 immigration-related lawsuits for agency delay. This is “the highest number of such cases filed in a single month since at least October 2007, the earliest date for which TRAC has data.”
TRAC examined data for mandamus and similar civil actions for “immigration-related applications.” A mandamus action compels a government officer or employee to issue a decision when a person has a clear right to receive the decision, the government officer or employee has a clear duty to decide, and the person has no other adequate legal remedy.
The Administrative Procedure Act includes a similar action to obtain a decision when a government officer or employee has unreasonably delayed taking a distinct action they are required to take. If either action is successful, then the court orders the government officer or employee to decide. The court cannot make the government officer or employee approve the immigration filing, but they must take some action.
While some recent lawsuits were filed against Department of State employees, the “vast majority” were against the Department of Homeland Security. Many named the Director of U.S. Citizenship and Immigration Services (USCIS).
According to the report, USCIS identifies increases in processing time delays due in part to the COVID-19 pandemic and “recent under-resourcing.” The report also references a March 2022 USCIS public statement with steps the agency intends to take to reduce the backlogs. However, the report acknowledged that noncitizens facing delays may view lawsuits as their “only means” of receiving a decision “when they hear nothing back from agencies for months or even years.”
The number of immigration-related delay lawsuits continues to climb. At the current rate, total cases for Fiscal Year 2022 will be 6,276, when compared with 4,347 for Fiscal Year 2021.
USCIS has taken some steps to lessen the impact of processing delays. It has lengthened the automatic extension of work authorization for timely-filed renewals in certain categories from 180 days after expiration to 540 days. USCIS also has begun premium processing for certain pending immigrant visa petitions in two employment-based categories.
But many other people are waiting for USCIS to make decisions on immigration filings where the agency has not begun improvements. For example, the USCIS median processing time (the time USCIS took to process 50% of the petitions) for employment-based immigrant visa petitions (non-premium processing) increased significantly over a two-year period—from 4.9 months in Fiscal Year 2020 to 10.7 months for October 1, 2021 through June 30, 2022.
In addition, current processing times for employment-based green card applications at the three USCIS Service Centers handling them—which are calculated based on 80% of cases completed—are bleak, with two Service Centers at 18 months and the third at 25 months.
The report points out another possible reason for the increase in lawsuits—the extremely high number of employment-based immigrant visa numbers available in Fiscal Year 2022. Congress has provided for 140,000 employment-based immigrant visas annually. In addition, family-based immigrant visa numbers that are not used in a particular fiscal year are added to the annual employment-based limit for the very next year. Most family-based immigrants apply at U.S. embassies and consulates abroad, which have been operating at reduced capacity.
The sharp reduction in family-based immigrant visas used in Fiscal Year 2021 means that approximately 280,000 employment-based immigrant visa numbers—twice the normal limit—are available, but only through September 30, 2022. Employment-based green card applicants who, but for USCIS delays, could have their applications decided this fiscal year, may view a lawsuit as their best chance at becoming a permanent resident without even further delay.
The TRAC report underscores the need for USCIS and the Department of State to take prompt, concrete steps to reduce delays for people who have submitted the documentation the agencies require but continue to wait for agency employees to decide.
FILED UNDER: TRAC, USCIS