The United States welcomes over a million legal immigrants per year, and about half of them arrive in the United States with a green card in hand through the immigrant visa process. During the pandemic years of 2020-2022, however, backlogs in the immigrant visa process have frustrated applicants, family members, employers, employees, and of course, their attorneys. Green card applicants sponsored by family members principally arrive through the immigrant visa process. They may not be able to enter the United States to “adjust status” to lawful permanent resident within the United States. Other prospective immigrants may have an issue that prevents them from qualifying for adjustment of status (illegal entry among other things), or they may simply travel so much that they do not have time to submit an application while in the United States and wait for travel documents. Thus, many opt to get an “immigrant visa” stamp in their passport that allows the holder to enter the United States as a lawful permanent resident, i.e., green card status.
The immigrant visa process entails three steps and three different government entities: U.S. Citizenship and Immigration Services (USCIS), National Visa Center (NVC), and a U.S. embassy or consulate. USCIS processes the immigrant petitions filed by sponsoring family members or employees. USCIS sends the case to the National Visa Center (NVC) which will collect fees and documents to prepare the case for the third step, the visa interview at a U.S. embassy or consulate abroad. This third and final step still poses a huge obstacle, as 90% of the backlog is sitting with just 20 posts according to NVC.
The three-step process has always posed several challenges for applicants, but the COVID-19 pandemic brought the process to a grinding halt. Consulates closed worldwide, and the return to business was staggered and exacerbated by employee attrition. Add several humanitarian issues in the past 3 years, including Afghanistan and Ukraine, consulates continue to have insufficient resources to move quickly through the hundreds of thousands of backlogged cases. However, there is hope and timelines have been improving. The various government entities involved continue to make concerted efforts to improve the process, by increasing staffing and addressing interagency transfers, technical issues, and communication problems.
Interagency Transfers
One key issue in the backlogs is the method of case transfer. Approved family immigration petitions on Form I-130 are transferred relatively quickly from USCIS to the NVC because they are adjudicated in USCIS’s Electronic Immigration System (ELIS). This allows the NVC to issue a fee bill within hours of transfer. Petitions filed by immigrant investors on Form I-526 are transferred to the NVC via email. USCIS sends all other approved petitions to the NVC by mail (United States Postal Service — USPS) and takes 2 to 3 weeks to arrive at the NVC. Practitioners report these cases can take 6 to 8 weeks to reach the NVC. This initial case transfer is important because it triggers case creation at the NVC, which allows the NVC to issue the fee bills and start the process of document collection from applicants. Case creation time frames vary and can be checked on the NVC Timeframes website. In just the past month, the case creation period was significantly reduced from 62 days to 18 days.
Once cases are documentarily complete, NVC works with the relevant consulate or embassy to schedule an appointment for each applicant. NVC schedules appointments on a first-in, first-out basis based on the date the case was completed, unless there is a reason to expedite, like age-out cases (where a child is going to turn 21 and lose eligibility), intercountry adoptions, or other expedites. Once an appointment has been scheduled, the NVC normally transfers cases to the relevant consular post within three business days, a reasonable timeline.
Technical Issues
The immigration visa process is unfortunately plagued by technical problems with the CEAC system used for filing the DS-260, the online application for a green card for those applying outside the United States. Problems can include the system timing out, inaccurate case status changes, problems processing payments, issues uploading documents (including a limitation of 2 MB, with no zip files or passwords allowed), and notifications going to the wrong representatives. The last two issues raise concerns about personally identifiable information exposure. The NVC is working to fix these problems, including an increase from 2 to 4 MB for uploads and developing data protection standard operating procedures.
Communication Problem
As noted above, applicants sometimes receive emails indicating a case update where there is none and sometimes receive notice that their case has been created before it has been approved. This type of communication leads to significant confusion and concern on behalf of the applicant and their representatives, especially where cases are created prematurely. The NVC has a policy of terminating cases if applicants or their representatives do not contact the NVC at least once per year regarding the case. More concerning is the lack of clear instructions on what method applicants should use to submit their documents to the NVC. Not all cases are allowed upload documents and must mail in hard copies. It is often difficult for applicants to determine the appropriate method and their cases can get stuck because they uploaded when they should have mailed or vice versa. Another challenge applicants face is requests for unnecessary documents, such as an Affidavit of Support from a joint sponsor where the petitioner in the case clearly meets the required financial threshold.
Despite the hitches described above, there is hope. Overall case processing is improving, and the backlog is slowly reducing. This is in large part thanks to the advocacy by lawyers and lawyer associations like the American Immigration Lawyers Association (AILA), who have been advocating on all issues covered in the article to assist the NVC with improving case processing.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the March 8, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
