A new lawsuit challenges slow green card adjudication process

A group of 125 Indian and Chinese nationals have filed a lawsuit in the US challenging the slowdown in adjudicating green card approvals in a bid to save the annual quota of green cards lapsing at the end of the fiscal year.

The petitioners had filed applications for permanent residency during or before December 2020, along with their dependent family members (spouses and minor unmarried children).

The petition said the Department of Homeland Security had failed to timely adjudicate certain green card applications, because of which “hundreds of thousands” of visas are going to be wasted and hundreds of thousands of Indian and Chinese professionals will miss the opportunity to become permanent residents. Instead, they will fall back into an interminable “backlog” of several years, sometimes decades, before they can immigrate.

“The failure to fully adjudicate all available visas in a fiscal year is governmental waste of epic proportions. Congress created a ‘spillover provision’ specifically so that unused visas would spillover from the family category for unused family-based visas into the employment category,” said Jeff Joseph, senior partner at Joseph Law Firm, one of the lawyers who filed the lawsuit. “The unlawful withholding of the adjudication of those visas by USCIS frustrates Congressional intent, further exacerbates the historical employment-based backlogs for nationals of China and India, and is just pure administrative waste.”

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Due to the Covid-19 pandemic, a very low number of family-based green cards were approved in fiscal 2020, resulting in them being ‘rolled-over’ to the employment based category in FY21. USCIS follows an October to September year. Indian nationals, followed by the Chinese, face a decades-long wait time for permanent residency in the US on account of the annual country caps on the number of green cards that can be issued.

The most recent data from USCIS shows that approximately 273,000 employment-based green card applications were pending as of March 31, 2021.

“USCIS’ inability or unwillingness to adjudicate green card applications in a timely manner is going to lead to the loss of at least 100,000 green cards in just under 60 days,” said Greg Siskind, founding partner at Siskind, Susser PC and attorney to the plaintiffs. “That will mean many years of extra waiting for people who have already, in many cases, been waiting more than a decade for a green card. This suit is designed to force USCIS to institute immediate changes to prevent this from happening.”

At the beginning of the fiscal year in October 2020, USCIS announced it would accept applications from thousands of Indian and Chinese nationals, many of whom have been waiting for over a decade. The petition requests that the court pass an order compelling the Department of State to adjudicate these applications by September 30, 2021. It also asks that the court order the USCIS to reserve green cards at the time an application is filed like the system USCIS utilizes for the H1B lottery process.