The United States Citizenship and Immigration Services (USCIS) has been hit by unprecedented processing delays and backlogs that have not only become a burden on AILA members and their clients, but also on the agency itself. Although all agency applications and petitions have been affected by these delays, it is most evident in the processing of Form I-601A, Application for Provisional Unlawful Presence Waiver. Over the past several years as a member of AILA's Government Relations team, I have observed through direct experience that these delays are much more than just an unfortunate inconvenience. For many, they represent personal difficulties, separated families and postponed dreams. The hardest part is knowing that much of this pain, suffering, and disappointment could be avoided if only USCIS could process benefit applications on time simply by living up 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 holding USCIS accountable to ensure the agency remains true to its mission of providing prompt, consistent, and fair adjudications. to their stakeholders, and advocate for relief from extreme case processing delays and backlogs. For AILA to address the concerns facing members and their clients, and work to advance our advocacy and policy priorities, it is imperative that we listen to our more than 16,000 members about how ongoing and emerging problematic agency trends are impacting to his clients.

One tool AILA uses to gather feedback and examples of agency issues and trends is a “Call for Examples,” which is a survey we send to members to assess the depth and breadth of a particular issue. And that's exactly what we did when we started hearing reports of extreme delays in processing related to Form I-601, Application for Waiver of Grounds of Inadmissibility and Form I-601A, Application for Provisional Waiver of Unlawful Presence, with a specific focus on the latter. Examples came in droves.

Grounds for Inadmissibility and Provisional Exemptions for Unlawful Presence

For context, the Immigration and Nationality Act (INA) establishes numerous grounds of inadmissibility, which is essentially a list of specific categories of people who are not permitted by law to enter or remain in the United States. These grounds for inadmissibility include health, criminal activity, public charge, national security and illegal presence, among others. For a complete list of inadmissibility categories, visit USCIS.gov, under Unlawful Presence and Inadmissibility.

Individuals who have accrued certain periods of unlawful presence defined by law, that is, those who are not in a period of authorized stay in the US, may be found inadmissible and are subject to three-year bans (if more 180 days) or ten years (if more than one year) under INA 212(a)(9)(B). If an unlawful presence ground of inadmissibility applies, immigrant visa applicants who are family members of U.S. citizens or lawful permanent residents (LPR) may request a waiver using Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the US for an immigrant visa interview at a US Embassy or Consulate abroad. Form I-601A only applies to those individuals who are inadmissible because they have accumulated the required period of unlawful presence. For other categories of inadmissibility, individuals must request 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 began receiving reports of long-pending I-601 and I-601A waiver applications through various internal mailing lists, and shortly thereafter issued a Sample Call to the general membership seeking additional information and comments. In just 48 hours, AILA members had submitted more than 300 case examples of long-pending I-601 and I-601A waiver applications. The parameters used to search for relevant examples of Form I-601 and I-601A applications were those pending with USCIS for more than 12 and 24 months, respectively, as those were the agency's published processing times when the survey was launched. in November 2022. Of the 307 sample cases received, 287 were for long-pending I-601A applications (“long-pending” indicates I-601A applications pending for more than 24 months). That's about 93% of all case examples submitted.

For context, the USCIS Historical Processing Times page shows national median processing times from fiscal year (FY) 2017-2022 for all USCIS offices. Below is an excerpt providing the reported median processing times, measured in months, for Form I-601A from fiscal year (FY) 2017 through 2022 over the past six fiscal years. The fiscal years run from October 1 to September 30, that is, from 1/10/21 to 30/9/22. This data indicates that from fiscal year (FY) 2017 to 2022, processing times for Form I-601A increased by a staggering 590%, and from fiscal year (FY) 2021 to 2022, processing times increased by 83.3% in just one year. While the average processing time appears to continually increase, so does the number of pending I-601A applications. According to the latest data released 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 fiscal year (FY) 2020 to the present, it is an insufficient justification for all of the resulting delay and difficulty. . These pending applications represent thousands of individuals left in an extended limbo.

Humanitarian Impact

Behind every long-pending case is a person whose life may have changed forever. Foreign nationals and their U.S. citizen or LPR family members are facing incredible hardships due to USCIS processing delays and backlogs related to I-601A waiver applications. One of these applicants, whose waiver application has been pending for almost 36 months, has a seriously ill parent abroad and cannot travel for fear of being inadmissible to the United States and subject to a ten-year re-entry ban.

Another applicant has a qualifying family member who is terminally ill and if the applicant does not process consularly before death, the applicant may no longer be eligible for the waiver. Relatedly, an applicant's qualifying family member died nearly three years after his underlying petition was filed. Because the qualifying family member was not the petitioner, relief may not be available under section 204(I) of the INA for Surviving Relatives or Humanitarian Resettlement Protections. Due to the USCIS delay, this individual was stripped of a potential benefit.

Several other I-601A applicants noted extreme financial hardship due to their inability to obtain work authorization. Many of these people are the only financial support for their U.S. citizen or LPR family members, meaning the number of people affected goes beyond the data published by USCIS. I-601A waiver applicants and their affected family members have been harmed by ineffective agency policies whose implementation has caused catastrophic backlogs.

The ripple effect of USCIS' excessive delay in I-601A processing is as profound as it is incalculable, 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 hold USCIS to its mission and provide reasonable processing times not only for I-601A waivers, but for all applications and petitions.