USCIS delays in adjudicating “stand-alone” Forms I-130, Petitions for Alien Relatives, on behalf of immediate relatives have been widely criticized. Processing times peaked in November 2013. USCIS claimed processing times were about 9 months, but the New York Times claimed they had reached 15 months. In November 2013, USCIS promised “concerted efforts” to bring down processing times. And as of now, USCIS is reporting processing times have been brought back into control. They’re at 5 to 6+ months depending on the USCIS office. That’s approaching USCIS’ 5-month goal.
An “immediate relative” (IR) is a U.S. citizen’s spouse, parent, or unmarried child under age 21. A Form I-130 is the citizen’s petition for the relative to qualify for permanent residence, i.e., a green card.
If the foreign relative has lawfully entered and is legally present in the U.S., the I-130 may be filed “concurrently” with the relative’s application to adjust to permanent resident status (I-485).
But this story is about “stand-alone” I-30s filed on behalf of relatives who are outside the U.S. or otherwise ineligible to adjust status within the U.S. For these relatives, the I-130 is just the first step in the process, followed by immigrant visa processing at the National Visa Center (about 2-3 months) and then a U.S. Embassy or Consulate overseas (about 2-5 months).
Extent of the Delays
Processing times and the total volume of cases pending peaked around Nov. 2013 but are now improving. Here are USCIS’ reported figures, although they diverge significantly from what the New York Times reported:
Cause of the Delays
The USCIS hasn’t clearly explained the reasons for I-130 delays. During an April 10 meeting with the American Immigration Lawyers Association (AILA), USCIS headquarters stated that “The I-130 delays were the result of increased filings of certain form types as well as difficulties in hiring new staff to address these increased filings.”
But a chronology of events shows that the agency has been involved in long-term efforts to centralize processing I-130s, and that these efforts were interrupted–and reversed–when the agency was called on by President Obama in June 2012 to adjudicate a new immigration benefit called Deferred Action for Childhood Arrivals (DACA). Pursuant to a presidential memo, DACA was intended to delay deportation–instead granting work authorization–to certain undocumented young people who were brought to the U.S. as children and have pursued education or military service here. Juggling these priorities was problematic for the bureaucracy, as the New York Times has reported.
Here’s the chronology:
- Aug. 15, 2011: In an effort to centralize I-130 processing, USCIS asked U.S. Consulates and Embassies abroad to stop accepting filings except in emergency situations. Instead, petitioners residing in countries without USCIS offices must now file by mail with the USCIS Chicago Lockbox.
- Jan. 1, 2012: To further centralize I-130 processing, domestic petitioners must now mail stand-alone I-130s to either the Chicago Lockbox or the Phoenix Lockbox, depending on their residence in the U.S. From there, the I-130s were distributed among USCIS regional service centers.
- June 15, 2012: President Obama signs a memo creating DACA benefits for for certain undocumented young people. Applications may be filed starting Aug. 15, 2012. That gave USCIS just two months to get the DACA program running.
- Aug. 15, 2012 (see here and here): USCIS announces it will temporarily reverses its trend of centralizing I-130 processing. California Service Center and Vermont Service Center began shipping stand-alone IR I-130s to the National Benefits Center (NBC). Then NBC transferred them to local field offices with jurisdiction over the petitioner’s place of residence (except that the NBC would adjudicate I-130s for petitioners residing abroad or requesting expedited processing). The temporary shift of stand-alone IR I-130s to local field offices was intended to be temporary to accommodate DACA work at Service Centers until NBC could bring on additional staff, as mentioned in several internal USCIS emails released pursuant ot the Freedom of Information Act.
- Oct. 1, 2012: USCIS Lockboxes began shipping stand-alone IR I-130s directly to NBC instead of the regional service centers.
- Oct. 21, 2013: I-130 IR processing times and pending case volume have peaked. Stand-alone IR I-130s are being transferred from NBC to the California, Texas, and Nebraska Service Centers to balance overall workload. There are only “a small number” left at local field offices. A supplement to the transfer notice reads:
USCIS is experiencing delays in adjudicating Form I-130, Petition for Alien Relative, filed by U.S. citizens for their qualifying immediate relatives. To facilitate more timely processing, USCIS is transferring immediate relative petitions from the National Benefits Center to the Nebraska, Texas, and California Service Centers. You have received this notice, together with a transfer notice, because your case was transferred to a service center. Please review your transfer notice to determine which service center will be processing your case. If you do not receive a decision or other notice of action from the service center within 60 days, please call Customer Service…. .
- Late 2013: NBC Division 8 at Overland Park, Kansas, was to begin to adjudicate stand-alone IR I-130s. But, according to the Times, “although the agency is financed by fees and does not depend on congressional appropriations, no new employees were brought on at that center.” USCIS officials told the times of “unanticipated hiring difficulties” but didn’t elaborate.
- Nov. 20, 2013: USCIS Public Engagement Division email to stakeholders responds to public criticism, stating that USCIS is making “concerted efforts” to speed I-130 processing for IRs and “expects” “to return to an average processing time of five months for these Forms I-130 by May 2014.”
How to Estimate Processing Time for Your Case
USCIS tries to complete cases on a “first in, first out” basis, as shown by the “date received” on the I-130 receipt notice. The agency posts estimated processing times broken down by USCIS office on the USCIS webpage.
According to the USCIS Ombudsman, the processing time calculation is based on the volume of “active” pending cases as represented by the number of weeks or months of new applications received by USCIS. (Active pending cases are those cases that are available for processing, as opposed to active suspense cases that are waiting for applicants to accomplish a step in the process such as re-taking the naturalization test or responding to a request for evidence.) An example of the process used to calculate processing times is as follows: if the active pending was at 200 cases for the reporting month, and for the past four months applications received were exactly 50 cases each month, the processing time would be calculated as 4 months.
Processing times are posted monthly on or about the 15th day of the month. The processing times are calculated from final statistics compiled 45 days prior to their posting. Based upon the methods currently used to collect performance data, USCIS requires 30 days to conduct quality control audits and make needed corrections before final data can be published and processing times calculated. Another 15 days is needed to receive field office and service center concurrence with the processing times calculated and to get them uploaded to the USCIS website.
Since the first-in, first-out model is based on the “date received” shown on the I-130 receipt notice, if the petition is transferred to a new USCIS office, it should still be adjudicated in order of the original “date received.”
Strategies for Dealing with Delays
The agency’s delays call for persistence and creative lawyering to come up with alternative strategies. For example:
1. Contact USCIS if Your Case Is Outside Posted Processing Times: An inquiry by a petitioner to USCIS National Customer Service Center will only trigger a follow-up request (called a Service Request Management Tool ticket) by the Center to the responsible USCIS office if “the application has been identified as pending longer than the currently posted processing time for the benefit type being sought.” USCIS’ goal is to respond to such follow-up requests within 15 days.
Note that if you have received and responded to a request for evidence (RFE) or a notice of intent to deny (NOID), the National Customer Service Center won’t issue a follow-up request until 60 days past the date USCIS received your response.
2. Process the I-130 Overseas: If the U.S. citizen petitioner resides abroad, it may be possible to process the I-130 at the USCIS overseas field office or, in an emergency, at a local U.S. Embassy or Consulate. (See my articles, Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative and USCIS Beijing Filing Instructions for Form I-130, Petition for Alien Relative). Will some citizens move abroad just to expedite the I-130?
3. Apply for a nonimmigrant visa: Some classifications (e.g., H-1 temporary worker or L-1 intracompany transferee) clearly allow holding “dual intent” (both intent to come to the U.S. temporarily under the terms of the visa and intent to immigrate). For other visa classifications (e.g., B1/B2 visitor for business or pleasure or F-1 student), it’s easier for a U.S. Embassy or Consulate abroad to deny the visa or for the U.S. Customs and Border Protection (CBP) to refuse admission due to “immigrant intent.” For more on this topic, see Proving Nonimmigrant Intent for a U.S. Visa. (This article also discusses the effect on a permanent residence application of having made a misrepresentation in a visa application or at a port of entry regarding one’s intentions to stay in the U.S.–for example, a person who enters with a B1/B2 (visitor for business or pleasure) visa or under the Visa Waiver Program, saying, “I’m just going to the U.S. for a two-week vacation,” but who intends to file a Form I-485, Application to Adjust Status, to get a green card.
4. A few are eligible for expedited processing: The USCIS expedite criteria are pretty narrow. USCIS may as a matter of discretion approve a request to expedite if it meets or more of the following criteria:
a. Severe financial loss to company or individual
b. Extreme emergent situation
c. Humanitarian situation
d. Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
e. Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
f. USCIS error
g. Compelling interest of USCIS
5. File a K-1 fiance(e) petition or K-3 spouse petition. The K-1 is for a person engaged to a U.S. citizen intending to marry within 90 days of entering the U.S. The K-3 is for the spouse of a U.S. citizen who has filed an I-130 and who seeks to enter the U.S. to await approval of the petition and subsequent lawful permanent resident status. Both K-1s and K-3 allow for accompanying children. Reported processing times for K-1 and K-3 petitions are typically about 5 months. For more, see Choosing the Best Visa Strategy for a Fiancée or Spouse: K-1, K-3, or Immigrant Visa?
6. Humanitarian Parole: USCIS grants humanitarian parole sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency–specifically, for urgent humanitarian reasons or if there is a significant public benefit. Discuss this option with your immigration lawyer.
The recent I-130 processing delays were just not acceptable, given that Congress has stated time and again that our immigration laws prioritize visa processing for close relatives. The agency itself has stated repeatedly that “USCIS’s goal is to adjudicate all Forms I-130 within five months of their receipt.”
Delays played “havoc with international moves and children’s schools and keeping families apart,” as the Times reports. Although processing times are improving, spouses and other immediate relatives separated or stuck abroad due to processing delays are unlikely to be satisfied until USCIS reaches its five-month processing goal. Also, stakeholders deserve an explanation from the agency as to why the delays spiraled and what USCIS is doing to avoid similar problems in the future.