Class Action Lawsuit Challenging USCIS Delay in Deciding Applications for Provisional Unlawful Presence Waivers

A group of immigrants filed a class action lawsuit seeking an end to processing delays that prevent them from becoming lawful permanent residents. U.S. Citizenship and Immigration Services (USCIS) has already approved immigrant petitions filed on their behalf. The complaint has been amended, increasing the size of the group, and clarifying that one petition is employment-based. The rest are family-based, filed by a U.S. citizen or lawful permanent resident family member. The waiver process is the same for all (whether the immigrant petition is employment- or family-based) and plaintiffs cannot move forward until USCIS processes the waiver applications they filed at least 12 months ago.  

USCIS previously decided these applications in under five months. But processing times have increased exponentially, to 34.5 months and 39.5 months (for eighty percent of the applications) at the two USCIS Service Centers that process provisional unlawful presence waiver applications. Plaintiffs can only complete the green card process after a personal interview at a U.S. embassy or consulate abroad and being admitted to the United States on the immigrant visa. If plaintiffs left the United States before USCIS decided their waiver applications, they would be separated from their families for a substantial time period, as they cannot proceed with their immigrant visa applications while the waiver application remains pending. 

On January 26, 2023, certain plaintiffs filed a motion for class certification. The motion requests that, if the lawsuit is successful, people who could benefit would include anyone who has filed (or will file) this type of waiver application and whose application has been pending for at least twelve months. On March 6, 2023, USCIS and Director Jaddou filed their opposition, alleging that delay claims require individualized review, and on March 9, 2023, these plaintiffs filed their reply.

On March 31, 2023, USCIS and Director Jaddou filed a motion to dismiss the lawsuit. They argue that because receiving a waiver is at the agency’s discretion, the court does not have the authority to decide the case. Alternatively, they argue that plaintiffs did not demonstrate in their complaint that they are entitled to relief because of unreasonable delay by USCIS and Director Jaddou. Plaintiffs filed their opposition on April 24, 2023. Plaintiffs maintain that the court has authority because there is no decision—their challenge is to the delay. Plaintiffs also maintain that the complaint presents a plausible unreasonable delay claim and discovery is needed to probe information within USCIS’ control and provide more facts before the court decides the issue.

While they wait for a decision from USCIS, plaintiffs cannot work lawfully and have no protection against being removed from the United States. The complaint describes the harm to family unity—a professed priority of USCIS and its Director Ur M. Jaddou—such as a U.S. citizen spouse with serious health issues who must continue with his physically demanding employment because his wife has no work authorization and is dependent on his wife to help him with life activities such as dressing and bathing. 

The amended complaint was filed in the federal district court for the Western District of Washington by the American Immigration Council, the American Immigration Lawyers Association, and the law firms of Gibbs Houston Pauw, Bless Litigation, Joseph & Hall PC, Kuck Baxter Immigration Partners LLC, and Siskind Susser, PC.