U.S. Citizenship and Immigration Services processing delays result in a lawsuit

Immigration and citizenship laws are complicated, but advocates are upset about how long it takes U.S. Citizenship and Immigration Services (USCIS) to process unlawful presence waivers. So much so, the American Immigration Council recently filed suit against the Biden administration. For details, the Federal Drive with Tom Temin spoke with Kate Goettel, the council’s Legal Director of Litigation.

Interview transcript:

Tom Temin You are talking about something known as a waiver for unlawful presence. So this would be something, for example, if a refugee came in a hurry and needed to get into the country. There’s a process for ensuring that they can stay legally until a hearing. Tell us the process here.

Kate Goettel Yeah. So this is mainly affecting people who have some period of unlawful status in the United States, who then go and marry either a U.S. citizen or legal permanent resident. Because they have a period of unlawful status in the United States, they can’t immediately adjust their status based on that marriage. They have to exit the country and they have to go to a consulate abroad to get that visa. The problem is that for people who have a period of unlawful status, particularly those who’ve been here for a year or more, there’s going to be a bar that kicks that’s going to bar them from returning for three, or in most cases, ten years. So they can apply for a waiver of that bar. And in the olden days before 2013, they would have to do it from abroad as they were going through this consulate process, leaving them separated from their family for some period of time. In 2013, a new rule was enacted, by the Department of Homeland Security, that allowed them to do that here in the United States. Those waivers are what we’re suing over in this lawsuit.

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Tom Temin So there’s a statutory basis for that ability to be able to apply for the waiver here in the United States. It’s not simply rulemaking by the agency.

Kate Goettel It is rulemaking by the agencies. This would be a regulation as opposed to a statute.

Tom Temin I see. And I guess, there’s some dispute over that at all going on, outside of the lawsuit.

Kate Goettel Yeah, there’s there’s really never been a dispute about this particular regulation. And I’m sure, Tom, as you follow federal news, there’s a dispute over a lot of regulations, but this one has been fairly uncontroversial. The reason it’s pretty uncontroversial is it’s really about family unity and keeping families together, which has been one spot where both sides of the aisle tend to agree when it comes to immigration. And frankly, this was just a commonsense way to make the process more efficient and work better.

Tom Temin And just a detail question, before we get to the matter at hand. If someone comes to the United States with the intention of marrying someone here, that’s not really family unity, though, is it? Because they’re not married yet?

Kate Goettel Yeah. So that is a different sort of category of people. And so, those individuals would not fall under the lawsuit. There’s actually a totally separate part of the immigration law that does allow for visas, for fiancees to come here and get married.

Tom Temin All right. Well, we could go on for hours about the arcana of immigration law. I wish I could, but the matter at hand is that you are suing USCIS, the Biden administration, the United States, over the length of time the waiver process takes. Is that the issue here?

Kate Goettel That’s exactly right. And as I mentioned, this waiver started in 2013. From 2013 to 2018, everything was humming along beautifully and people were getting these waivers decided within 3 to 5 months. Then that wait time started to go up. At the end of the last year, we are now seeing wait times of three years. And so you have spouses of U.S. citizens and legal permanent residents, waiting for three years without work authorization and without being able to move forward with legal status, in order to complete that processing of their marriage based visa.

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Tom Temin And what do you feel is or what’s your hunch about why the process is taking so long? A lack of adjudicators to look at the applications or what? Or the sheer volume of people?

Kate Goettel Well, the volume of people hasn’t really changed over that period of time. So that we don’t think is an issue. And unfortunately, the issue with these waivers is not in isolation. We’re seeing delays across the board with applications and petitions, with U.S. Citizenship and Immigration Services, the agency that decides petitions and applications for visa benefits. So the problem, we think, is that there needs to be better staffing, a better resource allocation. And we’re disappointed to see that Congress gave USCIS a lot of money last year for some of these precise issues of backlogs and slow processing. They were given almost 540 million last year, and explicitly told that they need to speed up the processing times.

Tom Temin We’re speaking with Kate Goettel. She’s legal director of litigation at the American Immigration Counsel. And what about the paperwork? How are these forms generated? Because paper, sometimes, takes a lot longer than online means. And USCIS seems to have been expanding its length and number of paper forms in recent years.

Kate Goettel That’s right. And USCIS is moving towards some electronic filings, but by far, they are still a paper based agency, which is something that my organization and many immigrant advocates have been squawking about, because we all know that this process can be a lot more efficient if applications are submitted electronically. But you’re right that applications have been getting longer, and there needs to be a real effort to streamline applications, but I think more critically, get everything online. Like the rest of the world.

Tom Temin Yeah, we’ve asked them about that. But the agency doesn’t answer the emails or phone calls on that topic, at least so far. Let me ask you then, what specifically is the lawsuit seeking?

Kate Goettel So the lawsuit is seeking an order from a judge, we filed this out in Seattle, to tell U.S. Citizenship and Immigration Services to essentially, hurry up and promptly adjudicate these waiver applications for our named plaintiffs and also for the entire class of people for whom they are subject to these delays. So if you look at our lawsuit, we named 248 people who are subject to these delays, but we also filed it as a class action. And of course, what that means is we’re asking the judge to solve the problem for everyone who is impacted by this. Specifically, we said everyone who has a waiver pending for 12 months or more.

Tom Temin Got it. And what has been the response so far that you’re aware of, from the government, and what’s the status of the case at this point? Because, sometimes, it takes two or three years for a judge to make a decision on these things.

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Kate Goettel Right. Well, we are going to have a hearing out in Seattle in March on that question of whether this can proceed as a class action. That’s going to be our first chance to be in front of a judge and test out the government’s arguments in response. And so right now, we’re still at the beginning of the lawsuit, but we do hope to be getting some preliminary rulings promptly after that hearing in March.

Tom Temin And what do you feel would be a reasonable turn around, as you said back in 2013, when this new rule was initiated, it was about 3 to 5 months. Is that what you’d like to see again?

Kate Goettel We would like to get back to those processing times. We’re asking for six months. That seems like a reasonable period of time in which these applications should be decided. One other point about how quickly they should be decided, is that these are not super long and complicated applications. You mentioned the lengthy applications that are often found with immigration forms. If you contrast the say to something like a naturalization application, that is much longer and much more involved, which makes sense, you’re trying to become a U.S. citizen. These are pretty short applications and can be decided relatively quickly. This is sort of a good faith check to make sure that there is a marriage and it was approved by USCIS so that they can go abroad, get that visa, come back and get on with their lives.

Tom Temin And once you become a permanent resident and say your desire is to become naturalized, then you don’t have that pressure on you. If it takes another couple of months to get the naturalization papers in, it’s not as big a deal if you are permanent resident status.

Kate Goettel That is exactly right. It really gives a sense of security for a lot of people and really changes the game, in terms of day to day life. We have one of our named plaintiffs, for example, who’s living in Utah right now. And in Utah, they allow for driver’s license for people who are undocumented. But many of the states around Utah do not. And so he is afraid to move anywhere else, because he can’t drive and he can’t help his family. And so we see a lot of, really, sort of tangible day to day consequences of not having that legal permanent residency, as you said. Not to mention, it is then taking them that much longer to become a naturalized U.S. citizen.

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