Nearly 200 Indian and Chinese nonimmigrant workers filed a lawsuit in August 2021 seeking a preliminary injunction to force USCIS to take action on their pending I-485 applications by September 30, the end of the government’s fiscal year. As of October 1, the unused green cards from the 2021 fiscal year will expire, unless USCIS approves the pending I-485 applications before that time or takes action to roll over this year’s unused green cards into the 2022 fiscal year. While USCIS states they will process 180k green cards of the available 262k by September 30, without further action, the remaining green cards will be wasted.

The U.S. Government Accountability Office (GAO) published a report which supports the claims in the pending lawsuit. The GAO found that USCIS failed to adequately address the backlog of applications. The Petitioners in the green card lawsuit immediately filed a Notice of Supplemental Authority, to notify the court that the GAO had released a report stating that “USCIS has failed to develop and implement effective strategies to reduce the pending caseload before them.” Petitioners claim this report supports their position that a preliminary injunction is proper, which is hard to refute. The GAO report points out that while the total number of applications and petitions for immigration benefits remained between 8-10 million per year from 2015-2019, the total pending caseload increased by 85%. These figures confirm that USCIS is not adequately processing the petitions and applications, resulting in a substantial backlog.

So far, USCIS has responded to the lawsuit arguing the commonality of the workers’ claims, as well as the chosen venue of the suit. Only 3 of the nearly 200 individuals who have joined the suit live in Maryland, where it was filed. USCIS relocated its headquarters to Maryland at the end of 2020, which is why it was chosen as the venue. So far, the judge seems to agree that you cannot sue USCIS in the district in which it is located if the underlying immigration case is not being adjudicated in that district, despite the fact the policy being challenged was created there.

If the judge agrees that the cases should be divided up and heard in the jurisdictions where the applications will be adjudicated, there will not be enough time for the applications to be decided before September 30. While there is a possibility the remaining green cards could be rolled over and reserved for the upcoming 2022 fiscal year, USCIS has argued that the law does not allow for this. We’ll have to wait and see if the judge agrees. There is some precedent for rolling over the visas, as green card numbers for Diversity Lottery cases were previously reserved in a different lawsuit, decided by the United States District Court for the District of Columbia.

Regardless of the outcome of this particular case, immigration advocates remain dedicated to continuing to file lawsuits, challenging the egregious delays we are seeing from USCIS. The GAO report makes it clear that there is a strong basis for such challenges – USCIS is not efficiently adjudicating applications or addressing the substantial backlog it has created while continuing to collect fees for these applications, fees that account for 95% of USCIS’ $4.8 billion budget. Meanwhile, nonimmigrant and immigrant petitioners and applicants remain in limbo, subject to lengthy delays and continued uncertainty. Simply put, something has to change.

ILBSG will continue to report on ongoing lawsuits and developments in this area. If you have questions about green card processing or how these delays may affect your case, please reach out to an ILBSG attorney today. We are here to help.

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