Agency Delays Enact the Administration’s Immigration Agenda

Our immigration system has always been a work in progress, evolving over the decades to address new priorities and confront new challenges. The role of Congress is to establish laws, the executive branch’s to implement them. Lately, however, it feels as if the U.S. Citizenship and Immigration Services (USCIS) has unilaterally been adding brick after brick in the “invisible wall” through new procedural delays and hurdles, in effect altering the law. These procedural bricks negatively impact the lives of ordinary applicants whose immigration cases are filed with the agency. Yes, this extends even to green card holders who “got in line” and “did everything the right way.” This blog post addresses the specific plight of green card holders who received their status based on marriage to a U.S. Citizen, and are now lost in the maze of delays and confusion.

In 1986, as part of President Reagan’s comprehensive, bipartisan immigration reform bill, Congress enacted the current framework for marriage-based permanent residence to require a 2-year interim green card before these immigrants are granted “unconditional,” permanent residency. At the 2-year mark, these green card holders are required to file I-751 Petitions for Removal of Conditions on Permanent Residence with USCIS. Notably, they must wait until the 90-day window before the 2-year anniversary of their green card approval and file their I-751 petition before the expiration date on that card. Other than immigrant investors, this is the only instance in immigration law where a timeline for filing a petition with USCIS is specifically limited to a 90-day filing window. In the past, here’s how things typically went when filing an I-751 petition with USCIS:

• 30 days before expiration of the applicant’s conditional permanent residency card – Form I-751 is filed with USCIS.
• 1 week later – Receipt notice is issued by USCIS confirming that USCIS is processing the case, and extending the applicant’s green card while the I-751 application is pending with USCIS.
• 4-6 months later – Approval notice arrives in the mail, or an in-person interview is scheduled at a local USCIS field office.

And, here are how things go now:

• 89 days before expiration of the applicant’s conditional permanent residency card – Applicant files Form I-751 with USCIS, nervously, given this age of uncertainty around immigration petitions.
• 2 months later, if you’re lucky – Filing fee checks are cashed and receipt notice is issued by USCIS.
• 2 years later (in my clients’ most recent experience) – Approval notice or interview notice arrives in the mail.

Here’s the takeaway: Through these processing delays, USCIS has ultimately extended the “conditional residence” period for applicants from 2.5 years to 4 years, or even longer, all without any involvement by Congress. Not only has Congress been circumvented, but there have not even been any formal regulatory changes made to the I-751 process. Rather, in my experience with many client cases, USCIS has shunted and delayed – repeatedly transferring I-751 cases from one USCIS office to another, using this approach to create not only massive delays in processing, but the most extensive delays in issuance of receipts on record for any type of immigration filing.

Here is a timeline of problematic developments over the past year:

• May 23, 2018 – A “processing error” resulted in erroneous fingerprint appointments for these petitioners.
• June 12, 2018 – USCIS “addressed the problem” of the delays by reissuing receipt notices that extend the validity of the interim proof of conditional residence from 12 to 18 months.
• June 13, 2018 – USCIS announced “data entry delay” at the California Service Center.
• September 10, 2018 – USCIS announced a filing location change, dispersing pending cases across all four USCIS Service Center.
• October 18, 2018 – USCIS announced that it completed receipting and data entry for filings between May 1^st and September 9^th, meaning that timely petitioners by this point may have been without proof of their green card status between May to October – a full 5 months.
• November 30, 2018 – USCIS announced that it would interview I-751 petitioners more frequently, which will mean even more extensive delays for typical petitions.

To reiterate, these delays in processing of receipt notices, and pending petitions, for these interim green cards is alarming, in particular, because of the narrow 90-day window for filing the I-751 application with USCIS. It is also alarming that the “conditional residence” period has de facto been extended from 2 to 4 years. Here’s what this means: Residents trying to secure mortgages are met with confusion when they present their expired green card and a receipt notice for their pending case. Residents applying for new jobs are told they don’t have proof of their status and work authorization. Residents who need to travel for an open-ended trip abroad to be with a dying parent are hindered in their travel due to expired green cards and receipt notices that only extended status for a window of time. Residents who needn’t be concerned about their status spend countless hours of frustration on the phone with the USCIS 1-800 customer service line trying to get clarity on why their case is still pending 18 months after filing. Many of these residents are without attorneys and don’t understand their status, their options if they need to travel or prove they have permanent resident status to mortgage brokers, border officers or prospective new employers.

Notably, although the law states that the federal government is required to deposit funds received from the public within three days of receipt, many practitioners have experienced USCIS failing to meet this requirement, with filing fees cashed several weeks, any in some cases, several months, after the I-751 petition is filed with USCIS. The law may be on petitioners’ side, but how to prompt USCIS to act on its legal obligation as a practical matter is another question.

While the description of the byzantine I-751 process may be a bit dry, it is worth diving into the details of this clear example of the way in which procedural challenges are being utilized to enact a very specific policy agenda without the appropriate involvement of Congress. These delays have had a very real impact on the lives of permanent residents who have already been approved for their “green cards” after an extended application process. This is a circumvention of the normal process for changing our nation’s immigration laws. Moreover, this is a profoundly unfair way to treat to these lawful permanent residents and their families.

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AILA Members seeking more information about this topic may find the upcoming February 12, 2019 seminar of interest: I-751 Petitions: How to Handle Delays and Changes in Circumstances

by Sandra Feist