AOS processing - the reality

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The widely held myth of adjustment of status processing is that the USCIS will promptly and efficiently process your case to completion, provided an immigrant visa is available for your preference category and country of chargeability. Unfortunately, this is a myth. The reality is quite different.

Adjustment of status is a grossly inefficient procedure. The USCIS, until recently, picked cases for completion on a more or less random basis. Even today, there is no assurance that a case will be processed to completion within a reasonable timeframe even if a visa is immediately available to the applicant.

For most of this past decade, AOS processing took between one and three years. USCIS inefficiency was masked somewhat by the retrogression of employment based cutoff dates in 2007. Without "current" priority dates, there was no way to tell how long they were taking to process cases. We have now reached a point where almost all of the EB2 cases filing during the 2007 filing rush have been adjudicated. Most of the EB3 cases that were filed back then remain pending due to visa unavailability.

When visas were unavailable, the USCIS initially shipped cases off to storage with the intention of waiting until their priority dates were current before starting to process them. Under intense pressure from the State Department and the Ombudsman's office, the USCIS finally agreed to process these cases to the point where they could be approved immediately upon the availability of a "current" visa number. This too has masked USCIS inefficiencies in that this processing was done at a time when there was no way to tell exactly how long they were taking to process cases.

Recently, they have been able to process some newly filed EB cases with previously approved I-140 petitions in six months. Cases filed without approved I-140s are taking closer to one year. This processing is being done, however, at a time when they have little or no backlog of newly filed cases. With the recent substantial advances in China and India EB cutoff dates, we can expect to see the backlog begin to build rapidly. When it does, we will almost certainly see AOS processing times lengthen substantially.

Today, at the same time that the CIS tries to claim that they are processing AOS cases promptly, they refuse to allow inquiries about any pending AOS application unless two conditions are met:

1. The priority date is “current” and
2. The application was filed more than 60 days prior to the presently shown processing date..

If you do make an inquiry, the automatic response is that your case is "in process" and that you shouldn't make another inquiry for at least 120 days. This means, as a practical matter, that you can't make a serious inquiry until your case has been pending for at least six months beyond their stated processing interval for "average" cases.

The statistics released by the USCIS contradict their claims of prompt processing. At the start of fiscla year 2012 (October 1, 2011), their report showed that more than 14,000 EB1 adjustment of status applications were pending. Almost 5,000 of those cases had been pending for more than one year. Recall that the EB1 category is always "current" so it is not possible to attribute this delay to unavailability fo visas.

The "Worldwide" EB2 category showed more than 10,000 pending AOS cases, with more than 5,000 of those cases pending for more than one year. Again, this is a category that had "current" visa availability at all times.

The lesson to be learned here is that you should never accept USCIS claims concerning AOS processing at face value.