Law Office of Bonnie Stern Wasser
—Bringing People Together—
Delays, Delays: Why is My Case Taking So Long to Be Decided?
By Bonnie Stern Wasser, Esq.
© 2005
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
One of the most common questions we are asked is: "Why is my case taking so long to be decided?" Not only are clients and prospective clients frustrated, so are the attorneys fielding so many of these questions! There are many possible reasons for delay. However, the most important thing to keep in mind is that the government reviews each case individually on its own facts. The cause of the delay can vary case by case (bad facts/ineligibility), by type of case (some types of cases get processed faster than others) and by region (an office in California may be slower than one in Vermont). Here are some possible reasons for delays:
- Agency delays due to staffing and/or priorities: Each agency involved in immigration has its own budget and personnel issues to face. Often resources are switched from one type of case to another depending upon issues in the law such as filing deadlines, policies and priorities mandated by headquarters (such as emphasis on naturalization), personnel pulled away for training, and filing trends by the public. For example, thousands of people filed permanent residence applications on or immediately before January 14, 1998 and before April 1, 2001 causing huge backlogs in labor certification processing and adjustment of status. More recently, the US Department of Labor (DOL) changed the entire labor certification processing process including the agencies handling different aspects and the locations of processing facilities. This has caused a huge backlog in completion of older cases.
- Federally mandated visa caps and quotas: Congress mandates an annual cap on the number of H-1B, H-2B and certain other visas issued. For the last two years, the caps have been reached early because Congress underestimated the demand for these visa categories. In fact, the H-1B annual cap for FY 2006, beginning October 1, 2005 was reached before the fiscal year even started!! That means no new visas can be issued until October 1, 2007 unless Congress changes the cap or the CIS re-counts or uncovers a few additional unused numbers. There are various exceptions within these programs where visas are still available.
In the permanent residence area, there are annual admissions levels for green cards in employment and family based immigration as well as in the diversity visa program. When the quota becomes backlogged, the final stage of immigration can either not be filed or not adjudicated until the quota becomes current. For example, as of September 1, 2005, visas are unavailable for people immigrating through jobs requiring a bachelors degree or two years of experience. For more information, see the Visa Bulletin on a monthly basis at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. - Security clearances: In a post 9/11-world, security clearances are the name of the day. They are required in every visa application for temporary visits in all categories and they are required in every green card case and naturalization. The majority of checks are processed rapidly. However, there are still thousands of cases pending for over two years.
There are several different types of clearances, including review of fingerprints and other biometrics against criminal records, checks against technology alert lists, and special checks for nationals from nations with perceived terrorism ties. Most security check delays are due to "name checks" wherein an applicant's name either matches someone else's who has a criminal record, or an applicant's name may have surfaced through other sources: complaints by aggrieved spouses, neighbors, employers/fellow employees, reporters, or other folks; or from prior fingerprinting for such mundane things as licensing requirements. Increasingly, data from foreign governments and all of the states is pouring into the various agency databases. What may not have turned up years ago can turn up today. These name matches must be followed up and investigated which can take a long time.
- Bad case/bad facts or inadequately prepared case: Cases that take longer to review due to bad facts, bad preparation or ineligibility take longer because a written decision setting forth the reasons for denial has to be prepared.
Note that each agency, and each branch office of that agency has its own particular procedures for conducting inquiries. CIS advises against making inquiries until 30 days have passed beyond the estimated processing time on their website, unless you have an emergency (such as a child turning 21 who will lose ability to immigrate with a parent, a medical or other critical emergency). See the "processing times" section of this website for references to various agency on-line processing times.
What can you do to speed up processing of your application? In the case of quota delays - nothing. By law, your case cannot be sped up until the quota is current. You might want to consult with an attorney to see if you qualify in other categories. In the case of visa cap delays, it is recommended that you seek counsel. Some kinds of cases still can be filed. At some point, CIS will allow new filings for the 2007 fiscal year in the case of H-1B visas. In the case of pending cases due to security check delays, there are a few options. 1) Contact your Congressional Senate or House representative to see if something can be done to speed up FBI or other agency checks. See http://www.aila.org and "contact Congress" to get the name and contact information for your representative. 2) Consult with an attorney to see if you might fit into one of several class action cases filed around the country or to consider filing a suit for mandamus to compel the government to decide your case. 3) Naturalization applicants may file new cases in federal court if a case has been pending for 120 days since interview. Litigation is difficult especially on security matters because of the government's interest in preventing terrorism and avoiding wrongful naturalization of certain criminals. 4) A last alternative is to be patient and wait.
If your case is simply lost or there has been no action at all on it, try to gather up copies of everything that was filed and seek counsel or contact your Congressional representative. Congressional help is best when there are no other alternatives and everything else has already been tried. Most importantly, when making inquiries with the appropriate agency, document, document, document! Be sure to send correspondence by certified return receipt mail, keep a phone log or journal, and keep copies of everything that you send in.
