BY: Sarah Salarano & Kyra Aviles
“I do believe that there could be approximately 100,000 unused employment numbers (for fiscal year 2021) ..COVID related issues which have had a dramatic negative impact on the fiscal visas for 2021” Charlie Oppenheim, Chief, State Department. This statement that the U.S. government is at risk of wasting about 100,000 employment-based green cards this year, sent thousands of Immigrants into a panic as USCIS faces historic visa backlogs related to the COVID-19 pandemic and former President Trump’s ban on the issuance of immigrant visas in April 2020. A lawsuit against USCIS has been filed by a group of 125 Indian and Chinese immigrants in a Maryland federal court under Chakrabarti v. USCIS.
How We Got Here
Each year, 140,000 employment-based and 250,000 family-based green cards are allocated under the Immigration and Nationality Act. USCIS mandates that any unused family-based green cards can “rollover” the following year as employment-based visas, and vice-versa. This ensures that all green card allotments are available for use and are not wasted. However, current rates of processing are taking longer than usual, with the average green card application is taking 10.5 months to process, up two months from last year’s processing time of 8.5 months. In extreme cases, green card applications have been sitting unadjudicated for up to five years.i These extensive processing times only worsen the backlog, which saw over 1.2 million employment-based green card applicants waiting for an available visa in April 2020.ii In addition, the closure of consulates and embassies, as well as travel restrictions due to the COVID-19 pandemic put a pause on green card adjudications overseas, further inflating the monumental backlogs.
As a result of this mounting problem, USCIS is unlikely to review the hundreds of thousands of pending adjustment of status applications by September 30, 2021 – the end of the current fiscal year. As such, the available rollover green cards, which the agency promised would put a substantial dent in the years long backlog, will expire.
In response to this potential loss of green cards, a lawsuit has been filed by a group of 125 Indian and Chinese immigrants in a Maryland federal court under Chakrabarti v. USCIS. The plaintiffs, already approved for employment-based green cards, have been waiting years (for some well over 10 years) for them to become available. They argue that delays in processing times will cause them miss this prime opportunity to receive legal permanent residency. “This will cause the already lengthy visa backlog to grow, and plaintiffs will have to wait years or decades more before they become eligible for residency again,” points out the complaint.
The lawsuit further asserts:
This lawsuit comes just a few days after USCIS appointed a new director, attorney Ur Jaddou, who made it one of her top priorities to address the visa backlog.
The stakes are high for Indian and Chinese immigrants specifically, as the waiting period for an employment-based green card can be several decades long for these countries. As of 2021, Chinese employer-sponsored applicants face a 10 year wait for green cards.iii Meanwhile, Indian employer-sponsored applicants face an 80 year wait. The CATO Institute estimates that nearly 200,000 applicants will die before they could even reach the front of the line.iv Current U.S. immigration policy limits applicants for any single country to 7 percent of the green card cap, which results in disproportionate wait times for high-skilled Chinese and Indian immigrants who significantly outnumber applicants from any other country.
An overarching fear for many plaintiffs is that their children will age out (turn 21) before the green card applications are adjudicated. This would leave the children with no option but to find another temporary status to apply for, such as a student visa. If they are unable to do so, they must leave the US completely – a country that, for many of them, is the only home they have ever known.v
Charles Kuck, one of the attorneys representing the plaintiffs, states, “if we are successful in reserving the 100K plus unused employment based 2021 numbers, we can wipe out 75% of all EB backlogs within three years.”vi Should the Judge rule in the plaintiffs’ favor, a possible solution would be to reserve the visa numbers through the next fiscal year to keep them available in the anticipated event USCIS cannot process the applications on time.
One of the plaintiffs is a front-line physician who has been waiting nine years for a green card. She has expressed feeling “cheated by the immigration system and the inhumane treatment rendered by USCIS personnel.” This sentiment is shared amongst many applicants caught in long processing times and bureaucratic inefficiency.
About the Authors
Sarah Salarano is a paralegal at Mona Shah & Associates Global. She graduated from Emory University in December 2020 with a degree in Political Science and English.
Kyra Aviles is a paralegal at Mona Shah & Associates Global. She graduated from Oberlin College in May 2021 with a degree in Political Science and Law & Society.
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