Unlawful Presence Waivers Reach a Whopping 44 Months in Processing Time

USCIS has been plagued by egregious processing times for many benefits categories, but among the worst is for unlawful presence waivers. As background, to be eligible for an unlawful presence waiver, an applicant must be the beneficiary of an immigrant visa petition and have a qualifying relative (U.S. citizen or lawful permanent resident spouse or parent) who would suffer extreme hardship as a result of a forced separation or relocation. Often, qualifying relatives suffer from medical, psychological, or financial hardships, and the prolonged delays in adjudication weigh heavily on them and their families. At the time of publication, USCIS is currently taking 44 months to adjudicate I-601A Provisional Unlawful Presence Waivers at their Nebraska and Potomac Service Centers. This delay is unprecedented. From FY 2017 through FY 2022, the processing times increased 590 percent, taking on average 4.6 months for a decision in 2017 and 31.7 months in 2022. These delays continue to get worse. At the start of 2023, there were over 121,793 unlawful waivers pending before the agency, and staffing shortages have compounded the delays. It is noteworthy to mention that the provisional waiver does not allow for any interim benefits, so often the applicant is ineligible for work authorization, and is not guaranteed protection from removal during the pendency of the application.

A class action suit was brought against USCIS earlier this year for delays in adjudication of the unlawful presence waivers, and the case remains pending in federal court. USCIS recently filed a motion to dismiss the lawsuit in March 2023, arguing that the plaintiffs were not entitled to relief because the waivers were discretionary, or alternatively, that the plaintiffs were not subject to an unreasonable delay. The plaintiffs filed an opposition to this motion the following month. While this class pends, it is still possible to bring forth individual mandamus complaints against the agency for the lack of adjudication. Anecdotally, some applicants have been successful in obtaining adjudications after filing mandamus actions against USCIS in federal court for failing to adjudicate their waiver petitions.