Green Card Backlogs and Visa Processing Delays: Causes, Impacts, and Solutions

By Brian Figeroux, Esq. | Editorial credit: Evgenia Parajanian / shutterstock.com 

To address these challenges, a combination of short-term and long-term solutions is needed. Hiring immigration attorneys and filing mandamus lawsuits can provide immediate relief for individuals stuck in the backlog, but these options are costly and do not address the root causes of the delays. Long-term solutions will require systemic reforms, including legislative changes, increased processing capacity, and modernization of the immigration system. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.

Overview of Green Card and Visa Backlogs

The green card and visa backlog, particularly in employment-based categories, is a growing concern within the U.S. immigration system. Green cards, officially known as Permanent Resident Cards, grant immigrants the right to live and work in the United States indefinitely. However, processing times for these cards can extend for several years, sometimes decades, due to overwhelming demand, administrative inefficiencies, and various legislative constraints. This delay impacts millions of immigrants, particularly skilled workers on non-immigrant visas such as the H-1B, who await the ability to transition to permanent residency.

In addition to the green card backlog, visa processing delays, especially in employment-based categories like the H-1B or L-1, exacerbate frustrations for both immigrants and U.S. businesses. These delays not only cause uncertainty for those trying to build a future in the U.S. but also create barriers for companies that rely on foreign talent to maintain their competitiveness in the global economy.

Importance of Understanding the Issue

For immigrants, particularly those on work visas, the delay in obtaining a green card presents several challenges. Prolonged waiting times affect job mobility, access to benefits, and family stability. From a business perspective, visa and green card backlogs hinder the recruitment and retention of top talent, leading to potential disruptions in productivity and innovation. Given the essential role immigrants play in industries such as technology, healthcare, and engineering, these delays pose a serious economic issue.

Understanding the reasons behind these delays, their impact, and potential solutions is crucial for policymakers, businesses, and the immigrants affected. Addressing this issue requires not just administrative fixes but systemic reforms to ensure the U.S. remains an attractive destination for skilled workers.

Purpose and Scope of the Analysis

The purpose of this analysis is to delve into the causes of the green card and visa backlogs, explore their wide-ranging impacts, and propose potential solutions. By examining the legal and administrative frameworks that govern immigration, as well as considering alternative strategies such as hiring immigration attorneys, filing mandamus lawsuits, and advocating for policy reform, this analysis aims to offer a comprehensive understanding of the challenges and avenues for improvement.

2. Understanding the U.S. Immigration System

Key Categories of Visas and Green Cards

The U.S. immigration system includes various pathways for foreign nationals to live and work in the United States, each governed by specific categories of visas and green cards. Immigrant visas, or green cards, are primarily divided into family-based and employment-based categories, while non-immigrant visas allow for temporary stays. The distinction between immigrant and non-immigrant visas is critical because the path to permanent residency often begins with a temporary work visa.

Key employment-based visa categories include:

• H-1B Visa: For specialty occupations requiring a bachelor’s degree or higher. Widely used in the tech industry.
• L-1 Visa: For intracompany transferees who work for an international company with offices in both the U.S. and abroad.
• O-1 Visa: For individuals with extraordinary abilities or achievements in fields such as science, arts, education, or athletics.

Permanent residency is typically pursued through employment-based green cards, which are divided into preference categories:

• EB-1: Priority workers, including individuals with extraordinary abilities, outstanding professors or researchers, and multinational executives.
• EB-2: Professionals with advanced degrees or exceptional ability in the sciences, arts, or business.
• EB-3: Skilled workers, professionals, and unskilled laborers.
• EB-4: Special immigrants, including religious workers.
• EB-5: Immigrant investors who create jobs in the U.S.

Each of these categories has different requirements and processing times, which vary based on country of origin and the type of visa sought.

Employment-Based Green Cards and Visas

Employment-based green cards are an essential part of U.S. immigration, allowing skilled foreign workers to permanently settle in the country. These green cards provide stability and long-term residency, unlike non-immigrant visas, which are subject to time limits and conditions.

One of the key challenges in this system is the numerical limits set on employment-based green cards. Each year, only 140,000 employment-based green cards are issued. Furthermore, there is a 7% per-country cap that limits the number of green cards granted to applicants from any single country, regardless of the population size or demand. This cap disproportionately affects countries like India and China, where demand for green cards far exceeds supply, leading to decades-long waiting periods for applicants.

Processing Pathways and Agencies Involved

Multiple federal agencies oversee the complex process of visa and green card applications:

• U.S. Citizenship and Immigration Services (USCIS): Processes applications for green cards, work permits, and other immigration benefits.
• Department of Labor (DOL): Oversees the labor certification process, particularly the PERM (Program Electronic Review Management) process, which certifies that hiring a foreign worker will not negatively affect U.S. workers.
• Department of State (DOS): Handles visa processing at U.S. consulates and embassies abroad.

The interplay between these agencies, along with the various steps involved in labor certifications, petitions, and interviews, creates numerous opportunities for delays, inefficiencies, and backlogs.

3. Causes of Backlogs and Delays

Legislative and Policy Issues

The current U.S. immigration system is governed by laws and policies that have remained largely unchanged for decades. A major legislative framework is the Immigration and Nationality Act (INA) of 1965, which introduced the preference-based system for family- and employment-based immigration. However, this system no longer reflects the realities of the modern workforce or the global demand for skilled labor.

The INA sets numerical caps on both family- and employment-based immigration, which have not been adjusted to meet the growing demand for visas and green cards. The law limits the number of green cards issued annually, causing an accumulation of applications, particularly for countries with high demand like India and China. Additionally, the per-country cap, which limits how many green cards can be allocated to nationals of any one country, further exacerbates the backlog.

Numerical Caps and Per-Country Limits

One of the primary causes of the employment-based green card backlog is the 140,000 annual cap on employment-based visas, which applies to all five preference categories. This cap has remained fixed since the 1990s, despite the significant growth in global labor markets and the increasing need for skilled workers in the U.S.

The 7% per-country limit further restricts green card issuance, meaning no more than 9,800 employment-based green cards can be issued to applicants from any single country each year. As a result, countries with large populations of skilled workers, like India and China, face backlogs that can extend for several decades. Applicants from these countries in categories such as EB-2 and EB-3 often face wait times of 10 to 15 years or more, creating a major bottleneck in the immigration system.

Administrative Inefficiencies

In addition to legislative restrictions, administrative inefficiencies significantly contribute to delays in visa and green card processing. USCIS, DOS, and DOL all face challenges related to inadequate staffing, outdated technology, and inconsistent application of policies. This results in slow processing times and inconsistent adjudications across various offices.

For instance, USCIS operates largely on a paper-based system, which is prone to errors, redundancies, and slow communication between different offices. Moreover, agencies often have conflicting priorities, with some focusing on security checks and fraud detection, while others prioritize speed in processing. These discrepancies lead to delays at various stages of the process, including labor certifications, adjudications, and consular interviews.

Impact of COVID-19 and Global Disruptions

The COVID-19 pandemic exacerbated existing backlogs, particularly in visa processing. U.S. consulates and embassies around the world were closed for several months, halting visa interviews and leading to a sharp decline in visa issuances. Although operations have resumed, many consulates are still dealing with the backlog of applications that accumulated during the pandemic.

USCIS also experienced operational disruptions due to COVID-19, with office closures, reduced staffing, and shifting priorities. The agency faced a severe budget shortfall in 2020, leading to furloughs and further processing delays. While USCIS has since recovered financially, the pandemic-induced backlog persists, with many applicants still waiting for their applications to be processed.

4. Impact of Backlogs on Individuals and Businesses

Emotional and Financial Strain on Immigrants

For individuals and families waiting for their green cards, the long delays create a sense of uncertainty and frustration. Many immigrants, especially those on temporary visas like the H-1B, face restrictions on job mobility, travel, and family reunification while they wait for their green cards. The uncertainty around their legal status can cause significant emotional stress, as their futures in the U.S. remain in limbo.

Additionally, green card applicants often incur significant financial costs due to prolonged processing times. Many must renew their work visas multiple times, paying fees each time, while others hire immigration attorneys to navigate the complex and confusing system. These costs can add up to thousands of dollars over several years.

Effects on Families and Legal Status

The long wait times for green cards also affect family dynamics, particularly for immigrants who wish to sponsor their spouses and children. Family-based green card applications are subject to their own set of delays, and the process for family members of employment-based green card holders can be particularly slow.

Children of green card applicants who turn 21 before their parent’s green card is approved may “age out” of their eligibility for derivative status, meaning they would no longer be considered dependents under the original application. This creates additional legal challenges for families, as these children may need to apply for visas independently, often facing the same lengthy delays as their parents.

Consequences for U.S. Businesses and the Economy

U.S. businesses, particularly in high-demand industries like technology and healthcare, rely heavily on foreign talent to fill critical skills gaps. Visa and green card backlogs disrupt these industries by delaying the hiring of skilled workers, limiting job mobility, and discouraging talented individuals from staying in the U.S.

Companies that sponsor foreign workers for green cards often invest significant resources in legal fees, sponsorship costs, and compliance with complex immigration regulations. However, when employees face long wait times for their green cards, they may decide to leave the company or the U.S. altogether, resulting in a loss of investment for employers.

Brain Drain and Talent Loss

Prolonged green card backlogs contribute to a form of brain drain, as highly skilled workers who are unable to secure permanent residency in the U.S. look for opportunities in other countries with more streamlined immigration processes. Countries like Canada and Australia, which have implemented more flexible and efficient immigration systems, are increasingly attracting talent that might have otherwise chosen to settle in the U.S.

The loss of skilled workers has long-term implications for the U.S. economy, as industries such as technology, engineering, and healthcare become more reliant on foreign talent. As other countries continue to improve their immigration policies, the U.S. risks falling behind in the global competition for skilled workers.

5. Legal Recourse: Hiring Immigration Attorneys

Role of Immigration Attorneys in Managing Delays

Immigration attorneys play a crucial role in helping individuals and businesses navigate the complexities of the U.S. immigration system. For those facing long processing delays, an experienced attorney can offer strategic advice, ensure that applications are filed correctly, and help avoid common mistakes that can lead to further delays.

Attorneys are also adept at responding to requests for additional evidence (RFEs) or other communications from USCIS, which can significantly impact the timeline of an application. By proactively managing these requests, attorneys can help prevent unnecessary delays and ensure that applications proceed as smoothly as possible.

Navigating the Complex Immigration System

The U.S. immigration system is notoriously complex, with numerous forms, requirements, and deadlines that must be met at every stage of the process. For individuals unfamiliar with the system, it can be easy to make mistakes that lead to delays or denials. Immigration attorneys are experts in this area, and they can provide valuable guidance on how to complete applications, respond to RFEs, and appeal decisions when necessary.

For businesses, attorneys can offer tailored advice on how to navigate the sponsorship process, manage compliance with immigration laws, and prepare for audits or site visits from government agencies. This expertise is particularly valuable for companies that sponsor multiple employees for visas or green cards, as it helps them avoid costly mistakes and ensure that their workforce remains compliant with immigration regulations.

Strategies for Avoiding Common Pitfalls

One of the primary benefits of hiring an immigration attorney is the ability to avoid common pitfalls that can lead to delays or denials. These pitfalls include incomplete or inaccurate applications, missing documentation, and failure to meet filing deadlines. Attorneys can help applicants and businesses identify potential issues early in the process and take steps to address them before they become major problems.

Additionally, attorneys can advise on alternative strategies when facing long wait times. For example, if an applicant is stuck in a backlog for an EB-3 green card, an attorney might explore whether they qualify for an EB-2 green card, which may have a shorter waiting period depending on the applicant’s country of origin.

6. Mandamus Lawsuits: Expediting Visa Processing

What is a Mandamus Lawsuit?

A mandamus lawsuit is a legal action that can be taken to compel a government agency, such as USCIS or the Department of State, to perform a duty that it is legally required to carry out. In the context of immigration, mandamus lawsuits are typically filed to force the government to make a decision on a delayed visa or green card application.

Mandamus lawsuits are often seen as a last resort for applicants who have been waiting for an unreasonable amount of time without receiving a decision on their case. The goal of the lawsuit is not to obtain a specific outcome (such as approval of the visa or green card), but rather to compel the government to take action and make a decision, whether positive or negative.

Legal Basis for Mandamus Action

The legal basis for mandamus lawsuits lies in the principle that government agencies have a duty to process applications within a “reasonable” amount of time. While there is no specific statutory definition of what constitutes a reasonable amount of time, courts have generally held that significant delays—such as those lasting several years—can justify mandamus relief.

To succeed in a mandamus lawsuit, the applicant must demonstrate that:

1. They have a clear right to the government action they are seeking (i.e., the adjudication of their visa or green card application).
2. The government agency has a clear duty to act.
3. There is no other adequate remedy available to resolve the delay.

Pros and Cons of Filing a Mandamus Lawsuit

Pros:

• Forces Government Action: A successful mandamus lawsuit compels the government to make a decision on a delayed application, which can be especially valuable for applicants stuck in lengthy backlogs.
• Can Expedite Processing: In some cases, the mere threat of a mandamus lawsuit is enough to prompt action from USCIS or the Department of State, leading to faster processing times.

Cons:

• Legal Costs: Mandamus lawsuits can be expensive, especially if they require extensive legal representation and court appearances. For many applicants, the cost of pursuing this option may be prohibitive.
• No Guarantee of Success: While a mandamus lawsuit can compel the government to make a decision, it does not guarantee a favorable outcome. In some cases, the agency may simply issue a denial after being forced to act.
• Risk of Retaliation: Although rare, some applicants fear that filing a mandamus lawsuit could lead to negative consequences for their case, such as increased scrutiny or harsher adjudication.

7. Potential Policy Solutions and Advocacy

Legislative Reforms and Advocacy Efforts

To address the root causes of green card and visa backlogs, comprehensive legislative reform is essential. Over the years, various bills have been introduced in Congress to modernize the U.S. immigration system, reduce backlogs, and create more flexibility for high-skilled workers. However, many of these proposals have stalled due to political gridlock.

One key piece of proposed legislation is the Fairness for High-Skilled Immigrants Act, which seeks to eliminate the per-country caps on employment-based green cards. By doing so, the bill would significantly reduce wait times for applicants from high-demand countries like India and China. While this bill has gained bipartisan support, it has faced opposition from lawmakers concerned about the potential impact on immigrants from other countries.

In addition to legislative reforms, advocacy efforts by immigrant rights organizations, business groups, and tech companies have focused on raising awareness of the economic and social impacts of immigration backlogs. These efforts have helped bring attention to the need for comprehensive immigration reform, but progress remains slow.

Comprehensive Immigration Reform

A more ambitious solution would involve comprehensive immigration reform, which would address both employment-based and family-based immigration issues. Such reform could include increasing the number of green cards available annually, eliminating or adjusting per-country limits, and creating more pathways for skilled workers to obtain permanent residency.

Comprehensive reform would also need to address the growing backlog of family-based immigration applications, which has similarly resulted in long wait times for family members seeking to reunite with their loved ones in the U.S. By tackling both employment- and family-based issues, comprehensive immigration reform could provide a long-term solution to the systemic problems plaguing the current system.

Modernizing the Visa and Green Card Process

Another potential solution involves modernizing the visa and green card process to improve efficiency and reduce delays. Many aspects of the current system are outdated, relying on paper-based applications and manual processing. By moving to a fully digital system, USCIS and other government agencies could reduce processing times and improve communication between different offices.

Additionally, the use of automation and artificial intelligence (AI) could help streamline certain aspects of the adjudication process. For example, AI could be used to review routine applications and flag potential issues for further review by human adjudicators. This would allow agencies to process applications more quickly while still maintaining rigorous standards for security and fraud detection.

Increasing Processing Capacity and Reducing Bureaucracy

One of the most straightforward solutions to reducing visa and green card backlogs is to increase the capacity of the government agencies responsible for processing applications. By hiring more adjudicators, investing in technology, and reducing bureaucratic red tape, the government could significantly speed up the processing of visa and green card applications.

Another approach would involve reducing the number of repetitive and unnecessary steps in the application process. For example, applicants are often required to submit the same documentation multiple times at different stages of the process. Streamlining these requirements and improving inter-agency coordination could help reduce delays and improve efficiency.

8. Other Potential Solutions

Digital Transformation and Automation

The U.S. immigration system is in dire need of digital transformation to improve efficiency and reduce delays. Moving away from paper-based applications and embracing digital processing systems could significantly cut down on processing times. Automated systems could handle routine tasks like data entry, freeing up human adjudicators to focus on more complex cases.

The use of artificial intelligence (AI) to assist with adjudication could also streamline the process. AI systems could quickly analyze large volumes of data, flagging incomplete applications or potential issues for human review. This would help speed up the initial stages of processing, ensuring that applications are handled more efficiently.

Moreover, blockchain technology could be employed to securely store and verify applicants’ information, reducing the need for repetitive background checks and documentation submissions. By implementing blockchain, agencies could create a shared, tamper-proof record of an applicant’s status and qualifications, facilitating faster processing and reducing the burden on both applicants and adjudicators.

Streamlining the Labor Certification Process

The PERM Labor Certification process, which is required for many employment-based green cards, is one of the most burdensome and time-consuming steps in the application process. Employers must go through a lengthy process to prove that no qualified U.S. workers are available for the position before hiring a foreign worker. This process often takes months, if not years, to complete and can delay green card applications.

Streamlining the PERM process by reducing the number of required steps and making it easier for employers to demonstrate their hiring needs could help speed up the overall green card application process. Additionally, allowing employers to submit digital applications and documentation would further reduce processing times.

International Agreements and Reciprocity

Another potential solution involves international agreements that facilitate easier movement of workers between countries. For example, the U.S. could enter into reciprocity agreements with countries that have similar labor needs, allowing for faster visa and green card processing for skilled workers from those countries.

These agreements could be modeled after existing free trade agreements, which often include provisions for temporary work visas for professionals. By creating a streamlined process for skilled workers from countries with high demand, the U.S. could reduce visa backlogs and attract more global talent.

Proposals for Employment Visa Flexibility

In addition to increasing the number of green cards available, creating more flexibility within the existing visa system could help reduce pressure on the backlog. For example, allowing workers on temporary visas like the H-1B to more easily switch employers or extend their stay in the U.S. would reduce the need for constant renewals and reapplications.

Another proposal involves expanding pathways for dual intent visas, which allow non-immigrant visa holders to apply for green cards without jeopardizing their temporary status. By providing more flexibility for visa holders to pursue permanent residency, the U.S. could reduce the number of applicants stuck in the backlog and create a more streamlined path to permanent residency.

9. Conclusion

Summary of Findings

The backlogs in green card and visa processing have become a significant issue for individuals, businesses, and the U.S. economy as a whole. These delays are caused by a combination of legislative restrictions, administrative inefficiencies, and global disruptions like COVID-19. The impact on individuals is profound, leading to emotional stress, financial strain, and long-term uncertainty. For businesses, these delays hinder the ability to attract and retain global talent, limiting their competitiveness in a global economy.

The Path Forward for Immigration Reform

To address these challenges, a combination of short-term and long-term solutions is needed. Hiring immigration attorneys and filing mandamus lawsuits can provide immediate relief for individuals stuck in the backlog, but these options are costly and do not address the root causes of the delays. Long-term solutions will require systemic reforms, including legislative changes, increased processing capacity, and modernization of the immigration system.

By investing in comprehensive immigration reform, digital transformation, and innovative policy solutions, the U.S. can reduce backlogs, improve efficiency, and ensure that the immigration system remains a gateway for skilled workers seeking to contribute to the American economy. Through these efforts, the U.S. can maintain its position as a global leader in attracting talent and fostering innovation.