Recent Immigration Policy: A Painful Acknowledgment of How Bad the Delays Have Gotten

By: Richard Hanus

 

If you are a foreign national living in the U.S. trying to renew your Permanent Resident Card (aka “Green Card”) or Employment Authorization Document (EAD), chances are you are all too familiar with the extreme processing delays now plaguing our nation’s immigration system. Even sadder is that in so many ways, these delays were avoidable given that the rules governing eligibility and the processes at issue are not that complicated. The 1-2 year delays that have built up are the outgrowth of the COVID pandemic as well as the previous administration’s neglect of most aspects of our legal immigration system. A remedy now being put into place by U.S. Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS) is a mega-extension of the validity period for these documents while the delayed processing times are being worked through.

Form I-90 Application to Replace/Renew Permanent Resident Card (Green Card)

Foreign nationals residing in the U.S. as Lawful Permanent Residents and who choose not to undergo the naturalization process to become a U.S. citizen, must generally renew their Resident Card every ten years by way of a Form I-90 application. In the vast majority of cases, the application process is simple and similar to the renewal of a driver’s license, involving a relatively straight forward form and instructions. But further compounding the frustrations of dealing with the 1-2 year processing time is the fact that residents must wait until their cards have no more than 6 months validity remaining before fi ling for renewal. The good news is that DHS/CIS is now issuing I-90 fi ling receipts confi rming that the pending renewal applicant can continue to live and work in the U.S. and travel internationally for an additional 24 months beyond card validity. Hopefully, that will be enough time for DHS/CIS to process and issue a renewed 10 year card.

I-765 Application to Renew Employment Authorization Document

Under current U.S. immigration regulations, there are more than fi ve dozen ways a foreign national in the U.S. can qualify to receive an EAD. An EAD establishes a 1-2 year right to live and work in the U.S. and eligibility is most often by way of one of the following applicant categories: DACA recipient, asylum applicant awaiting an extended decision-making process, pending applicant for cancellation of removal relief in deportation, or pending applicant for initial green card based on a family member or employer’s petition. In addressing massive delays plaguing the EAD renewal process, DHS/CIS recently announced that the issuance of fi ling receipts for some EAD renewals, including in several of the above mentioned popular categories, will effectively extend document validity by 18 months and contain language allowing for the document holder’s continued right to live and work in the U.S. during this period.

I-751 Petition to Remove Conditional Basis on Lawful Permanent Resident Status.

A foreign national who is approved for lawful permanent resident status by way of a marriage based immigration petition, will only be issued a resident card on a two year, conditional basis when the underlying marriage is less than 2 years old at the time of approval. The “conditional resident” in such a case must fi le a Form I-751 petition to remove the conditional basis of their resident status. This petition process allows DHS/CIS to examine events occurring after initial card issuance and to confi rm the bona fi des of the marriage at issue and/or if extenuating circumstances are at play (e.g. petitioner was the victim of spousal abuse). Current processing times for I-751 petitions have skyrocketed, so much so that the fi ling receipts now being issued by DHS/CIS serve to extend conditional resident card validity FOUR years beyond card expiration! Hopefully within this period, DHS/CIS will have more than adequate time to properly review these fi lings and when necessary, carry out follow up in person interviews with the parties.

On the bright side, certain conditional residents awaiting a decision on their I-751 petitions will still be eligible to proceed with an N-400 Application for Naturalization notwithstanding the fact that their earlier I-751 fi ling still remains pending. In such cases, review of both the applicant’s I-751 and N-400 fi lings take place at a single interview at a local DHS/CIS Field Offi ce, and with processing concluded in a surprisingly effi cient manner.

Speaking of N-400 applications and as noted in previous blog entries here, not all of the news out of the DHS/CIS processing time newsroom is bad. For instance, N-400 Applications for Naturalization are being processed, start to fi nish, in less than 5 months across many jurisdictions in the nation. Further, the fact that DHS/CIS is at least taking the decisive action to respect the rights of pending applicants as noted above is a step in the right direction and hopefully in one way or another, progress will be made in reducing these intolerable delays in the near future.

PUBLISHED March 2, 2023 – “RICHARD’S BLOG” Copyright © 2023, By Law Offi ces of Richard Hanus, Chicago, Illinois