USCIS delays in the processing of immigration applications continue to be a major headache for many immigrants and their families – and for their lawyers, who often have to tell understandably frustrated clients that their application is still pending after months or years of waiting. An action under the Administrative Procedures Act (APA) can seek to compel USCIS to decide a long-delayed application. In Saavedra Estrada vs. Mayorkas, et. al., our law firm won an important case under the APA, resulting in a long-pending unlawful provisional waiver application being granted without further delay.

Our client is the beneficiary of an approved relative petition by his U.S. citizen spouse. He entered the U.S. without a visa, and so is not eligible to apply for adjustment of status in the U.S. but will have to seek permanent resident status through an immigrant visa application in Guatemala. In order to avoid the ten-year bar to re-entry into the U.S. (based on his unlawful presence) he needs a waiver based on a showing of extreme hardship to their spouse. In the past this waiver application was made during the immigrant visa process in the home country, which exposed the person to a significant risk: if the application was denied, the waiver applicant was effectively barred from returning to the U.S. Starting in 2013 USCIS initiated the “provisional waiver” process: the application can now be made in the U.S., and the applicant only leaves for immigrant visa processing if the waiver is granted.

When the Provisional Waiver process was first introduced, USCIS processed these applications within three to five months. But starting around 2018 processing times began to increase, and now stand at about 43.5 months. This very long time causes real problems for applicants and their families. First, if the immigrant visa process is not completed within two years the process is terminated by the State Department, or the applicant must pay the filing fees to the National Visa Center again to restart the process. Second, the entire experience is filled with anxiety, uncertainty and stress. When the anxiety and uncertainty continues for months and years calls often go out to the family’s immigration lawyer. “Can’t you do something to force USCIS to make a decision?”

Under section 706(1) of the APA an action in federal court may be brought to “compel agency action unlawfully withheld or unreasonably delayed.” Was USCIS’s failure to decide the application for nearly two years an “unreasonable delay” or agency action “unlawfully withheld”? In our case the government’s lawyers first argued that the Federal Court had no jurisdiction over the case. Their argument was rejected by the Judge, who agreed with us that language in the Immigration and Nationality Act which deprives the federal courts of jurisdiction to review “a decision or action” by USCIS on a provisional unlawful presence waiver application does not mean the courts cannot review a claim of unreasonable delay under the APA. The question was whether USCIS had made a “decision” or taken an “action” by not adjudicating the waiver application. The Judge upheld our argument: if not making a decision is itself a decision by the agency, the APA would be a worthless tool. 

The Judge then ruled in our favor on the main issue in the case. She found that USCIS may grant or deny an application, but it must make a decision or an act.  She held that the Government’s argument that its failure to act is The Judge held that USCIS had unreasonably delayed. First, she rejected USCIS’s argument that the wait time of almost two years is reasonable since it is within the current processing time for a Form I-601A at the Nebraska Service Center. We argued that this cannot be the relevant measure, since if it were all USCIS delays would be “reasonable.” Next, the Judge cited other cases in which courts had found two-year USCIS adjudicatory delays unreasonable under the APA. Third, the Judge agreed with our reasoning regarding the unfair consequences of the delay. Our client would have to pay the immigrant visa fees again if USCIS’s delay caused that process to be terminated, and the delay was creating terrible uncertainty and anxiety for him and his family. Finally, while USCIS stated that it is it is overworked and under-resourced, we argued that the agency must better manage its workload and funding, which comes from the very high application fees it charges. Stating that USCIS’s assertion that it has many priorities and limited resources is not sufficient to have the case dismissed, the Judge quoted a Court of Appeals decision from another APA case: “Taken to its logical conclusion, the Government’s argument would eliminate federal judicial review of any agency action and wipe the APA off the books.”    The Judge ruled in our favor on all points of the lawsuit we brought for our client, and denied the US Attorney’s Motion to Dismiss our complaint. As a result, soon after this decision, USCIS granted the unlawful presence waiver application. If you or your loved one is suffering an undue delay on your I-601A unlawful presence waiver, feel free to contact us to schedule a consultation with one of our attorneys.