The Intolerable Delay for Relative Petitions

Author: on December 17, 2013

shutterstock_114417286I recently met with a prospective client.  The facts were not unusual: she was 35 years old, a U.S. citizen who is, and has been, living abroad, and she met somebody she wishes to marry.  With this decision comes a host of other major life decisions: how to introduce her fiancé to her family, when and where to get married, and when and where to begin a family.  These are choices that many, if not most of us, experienced in our 20s and 30s; it is part of the human experience.  But when each half of a soon-to-be-wed couple is from a different country, there are additional considerations of immigration laws and processing that must be taken into account.

We reviewed the options: a fiancé visa if she wishes to be married in the U.S., or a relative petition and an immigrant visa application following a wedding abroad.  For the latter option, there is the legislative provision for a K-3 visa if the processing is going to take a long time.  However, USCIS has eviscerated this provision by insisting on adjudicating the K-3 petition simultaneously with the relative petition.

The discussion naturally turned to processing times.  I had to explain that it was absolutely unknown.  Right now, relative petitions are taking close to — maybe more than — a year.  K-3 petitions may or may not be available.  I still don’t understand the benefit of a K-3 petition since if USCIS is going to adjudicate the K-3 petition, why not simply approve the relative petition?  It appears that USCIS agrees, but rather than approving the relative petition in a timely manner, it doesn’t adjudicate either until an unknowable period of time has passed.

It is, of course, close to impossible to plan a wedding based upon a fiancé petition.  There is a 90-day window for the wedding, and the timing of that window cannot be known in advance.  By the time it is known, there is insufficient time to find a venue, hire a caterer, send invitations, and plan a celebratory wedding.  It is simply not possible.

Then, of course, my client wanted to consider the timing to start a family.  She would like to have a baby in the United States, where she is more comfortable with the medical care, and has the support of family.  But she naturally wants her husband to be a part of that experience.  After all, it will be his child as well.  The biological clock is ticking and family planning issues are a major consideration.

Oh yes, the fiancé lives in an Islamic country.  We don’t discriminate based upon religion, of course — this is America.  Except I am required to advise this client that “administrative processing” might be a phrase in their future.  If so, “administrative processing” based upon the non-discriminatory security checks may delay her husband’s entry to the United States by anywhere from 2 weeks to a year or longer.  This makes it more difficult to plan.  No, let’s be honest, it’s not more difficult, it’s impossible.  Of course, since he has been denied a visitor’s visa based upon section 214(b), there is no hope that he may be able to come to the U.S. temporarily to share in the birth of a child, and then return to his home country to wait for the immigrant visa.

So I find myself discussing the timing of a pregnancy with my client.  Should she wait to get pregnant or get pregnant before getting married if they are going to apply for a fiancé visa? (This was not acceptable to the client.)  She is 35 years old, so the question shifted to what if she has trouble getting pregnant?  Should she start now? If a child does come along, what happens to the process to bring her husband to the U.S.?  Will he miss the first year or more of the child’s life?

Then I get angry.  She should not have to discuss all of this with her immigration lawyer– these are issues best discussed with her obstetrician and family if she chooses.  Yet our dysfunctional immigration system makes it an immigration issue.  It should not be an immigration issue, and to make it an immigration issue is just plain wrong.

USCIS appears to have put immediate relative petitions on hold.  There is a heavy case load, we are told, and yet they still collect a $420 filing fee to adjudicate each petition.  We are told that the fee, which has increased fourfold in the last 20 years (more than 300 percent higher than the cost of living increase[1]) is because the fee pays for the service and permits better service.  Twenty years ago a relative petition took weeks to adjudicate.  Now?  Now it takes years.

It seems that USCIS owes the American citizens it purports to serve an explanation.  And following the explanation, an apology, and a plan to correct this injustice is the least that should be done.  To paraphrase, justice delayed does indeed create injustice.

Written by Rob Cohen, Vice Chair, AILA’s USCIS Liaison Committee

[1] In 1994, the INS increased the filing fee for a relative petition to $80.00.  The Department of Labor, Consumer Price Index, calculates that $80 in 1994 has the same buying power as $126.07 today.  This is an increase of 333% above the increase in the consumer price index.

  • LetsBeReasonable

    This article is ridiculous and just goes to show how out of touch AILA’s leadership is. Or worse, that the author knows better but would rather simply post misinformation to help fan the flames that everybody is a victim of the big bad USCIS.

    Processing times have greatly improved over the past few years, and the USCIS is taking significant steps to modernize and streamline the process. I believe they are spreading the I-130s around to various service centers to help even out the workload and improve processing times.

    As for the misleading information about fiancée visas, in addition to the 90 days the couple has in order to marry once the beneficiary has entered the USA, the beneficiary actually has up to 6 months to actually use the visa (once issued) to enter the USA. So that means the couple actually has up to 9 months (after the visa has been issued… a known date) to plan that wedding.

    As for the ridiculous notion of advising a client who is crazy enough to seek the author’s advice about when to get pregnant, stick to immigration law. Does the author also fret because he can’t tell his client what stocks might go up over the next year or two? I’ve been doing family based immigration law for around 20 years now, and never once has a client asked me a similar “based on the current JIT Report, when can I get pregnant” question. How about any of you other readers? No, I didn’t think so.

    But author, keep up the notion that going through the immigration process and approving cases should involve instant gratification and be as automatic as being handed your Big Mac when pulling through the drive thru window. LOL!

  • Kaylara

    Oh yes, they are spreading the I130’s around to other service centers. That way, our cases can collect dust in a completely new office.

    Processing times over the past two years have gone from 5 months and through the stratosphere. I have taken the time to compile the processing times over the past two years into a chart showing this: You can go through the AILA’s archived information and verify that info if you’re so inclined. I used their archive to compile it.

    The biggest processing average we were given in the past six months was a horrifying 16.6 months. Currently, the USCIS is showing a 7.4 month processing average. But don’t let that fool you. They’ve accomplished it by processing a few newer applications in a very short amount of time to attain that change. If you want to see something very depressing, go and view the dashboard information: – That’s the National Trend Chart. You will note that they are currently processing about half as many petitions as they were in March. You’ll also notice the yellow line creeping upwards, after they sent the I130’s to a National Benefits center that was not operational to collect dust for half a year. The Volume Chart shows equally paltry numbers: Seriously, do some research and check out the numbers coming from the service centers. They’re horrifying to an I130 petitioner.

    Now, for my ancedata: I’ve been waiting for 9 months for an answer on my husband’s petition. I don’t expect instant gratification, but I do expect to have some kind of a time frame, something that the USCIS is currently unable to give me. Believe it or not, this impacts my life in a very big, and very real way. I’ve been married for 8 years. We have two small children together. I lived in the Netherlands with him for 8 years, married him here in NJ, and we decided last year to move back to the US. My children and I arrived earlier this year and my husband is waiting in the Netherlands. We did not file overseas because it did not seem a viable option to us. When we filed, the average time from beginning to the end of the process was 8-9 months total. This seemed reasonable to us, and we planned accordingly, with some leeway in our calculations for unforeseen circumstances. We did not, and could not factor in the fact that they would send our petition somewhere to collect dust for months at a time. Until we are finished with this process, our lives are basically on hold.

    And my story is not unique. There are a large number of petitioners stuck in this backlog. And we are getting no clear guidance as to when we will be done with this part of the process. That is unacceptable.

  • cjseperatedhusband

    “Letsbereasonable” is anything but. The wait time for spouse visas is through the roof. When I call the USCIS, just for the 1st part of this grueling journey, I am informed that they are now working on February petitions and that they should get to mine by sometime in 2015. Meanwhile, Congress (and the AILA apparently) just can’t wait to let unlawful aliens have the very thing for which I and my wife are being made to suffer so much to get–residence and a work permit in this country.