USCIS recently released some new information to Congress about the affirmative asylum backlog, and–surprise, surprise–the news is not good. The backlog continues to grow at a record-setting pace, meaning that under the agency’s last-in, first-out (LIFO) policy where new cases receive priority over old cases, those waiting for an interview are falling further and further behind. Worse, USCIS has indicated that they do not have the resources to reduce the backlog, and they don’t expect to receive those resources any time soon.
Let’s start with the numbers. As of December 31, 2022, there were 667,040 cases pending at our nation’s Asylum Offices. The previous data sets were from September 19, 2022, when there were 543,000 pending cases, and December 31, 2021, when the backlog stood at 438,500 cases. This means that in only one year (2022), the backlog grew by 52%. Put another way, on average, the backlog in 2022 grew by 626 cases per day! That’s not even the worst of it. In the last three months of the year, the affirmative asylum backlog grew by more than 124,000 cases–meaning that on average, between September 19, 2022 and the end of the year, 1,204 cases were added to the backlog every single day! So not only is the Asylum Office failing to make progress on the backlog, the situation is getting worse at an unprecedented rate.
Many of the backlogged cases are quite old. USCIS says that 27% of pending cases were filed prior to October 1, 2017, meaning that about 180,000 cases were filed more than 5½ years ago (and some of those have been pending much longer than that). Remember that some cases include more than one individual, and so the number of people waiting 5½ years or more is probably over 200,000. Also, many of these asylum seekers are separated from their family members back home. These people relied on our country to protect them and their families from harm, and we have let them down.
Of course one reason why the longest-suffering applicants receive no relief is the LIFO (last-in, first-out) system, where newly-filed cases get priority over backlog cases. Since the Trump Administration re-instituted LIFO in January 2018, USCIS has claimed that this system deters fraud and helps slow the growth of the backlog. I have long had my doubts about this justification. Now, despite the massive increase in the backlog over the last year, in its message to Congress, USCIS continues to insist that LIFO is somehow limiting the growth of the backlog. Are they completely delusional? Even if LIFO were working as USCIS claims, how can that be used to justify keeping hundreds of thousands of asylum seekers in limbo for years and with no end in sight?
To be fair, USCIS has devoted some resources to older cases. In Fiscal Year 2022, which ended on September 30, 2022, USCIS completed 14,495 of the oldest cases (filed prior to January 31, 2018). Certainly, this is good news for those who were interviewed (assuming that they were approved), but it represents less than 10% of all the case filed prior to January 31, 2018. At that rate, most of the longest-waiting applicants will not complete their cases for years to come.
Also, USCIS was only able to devote resources to these older cases thanks to a $275-million appropriation from Congress in FY 2022. Unfortunately, according to USCIS, the FY 2023 budget “did not… include continued funding for appropriated positions for asylum processing or addressing USCIS backlogs.” USCIS notes that, “This will directly affect our efforts to address the affirmative asylum backlog,” and the agency appeals to Congress for additional funding in order to carry out its humanitarian mission. Given that Republicans control the House of Representatives, it is difficult to believe that this funding will be forthcoming. Recognizing the budgetary constraints, USCIS says that it is committed to “doing what it can with the resources it has to support our humanitarian mission.” That doesn’t sound promising.
I do have some sympathy for USCIS. The agency has been given an impossible task–to deal with a large increase in the number of asylum seekers, to adjudicate credible fear interviews at the border, and to prioritize Afghan evacuees over other cases (which is required by law). While the task may be impossible, USCIS has compounded the problem by doing such a poor job. It seems that all the agency can do is try to hire more officers, which they have been doing since 2013 to little effect, or beg Congress for more money, which has hit a wall. There are common sense ideas that could make things better, most notably, to return to the first-in, first out (FIFO) system where cases are interviewed in the order received. That system is more equitable, more predictable, and at least gives people some hope that they will eventually receive a decision. The agency could also re-think how it conducts interviews in order to make them shorter and more efficient, and it can create (and publicize) rules for expediting.
One final note: This week, Jews around the world are observing Passover, where we celebrate our journey from slavery to freedom. The holiday reminds us that escaping from danger is not enough. We must also reach safety and find a new home. This year, I hope that USCIS will endeavor to find bold and creative solutions to help those stranded in the backlog, so that they can finally resolve their cases, reunite with their families, and find the sanctuary and freedom that they have so long been seeking.
We filed our case in the march of 2017. It’s been almost 7 years and no idea how much longer we’d have to wait…
It is not predictable, unfortunately. You can try to expedite, and I wrote about some ideas for that on March 23, 2022. Take care, Jason
Hi Jason,I am filing i589 asylum online.There is a question which says”Do you want to apply for withholding of removal under convention against torture”? Since I have my legal J1 status and I am applying for asylum,I got confused about the answer. I think this is for people who are in removal proceedings.I will be thankful if you guide me.
It really does not apply to you if you are not in removal proceedings (since the Asylum Office cannot grant Withholding or Torture Convention relief), but we always check “yes”, as there is no harm in that and if the case goes to immigration court (hopefully not), the form will have the correct box checked. Take care, Jason
Hi Jason,Thanks for helping us.
I am on F1 status and I have graduated recently from school and my OPT related EAD is pending.
Also,I applied for asylum previous year and I have not get any interview.
1.Can I apply for asylum EAD while I am a pending OPT EAD application?
2.if no,Can I apply for asylum EAD after my OPT EAD got approved? So I will have 2 EAD in my hand.
3.If my asylum application get denied in asylum office,Am I able to renew my asylum EAD while I am on removal proceedings?I have heard renewing EAD on removal proceedings is way harder compare to a person who is on asylum pending.Is this true?
4.how long does it take to renew asylum EAD?Is this process longer in comparison to the first time asylum EAD application?
5.How many times am I able to renew my EAD card?Is there any limitation?For example,If my case get denied in asylum court,Can I renew it while waiting for second court?
Thanks a lot for your help.
1 – Yes. 2 – You could do that too. The first asylum-pending EAD is free and takes only a month or two to get (usually) and so you may want to get the OPT EAD, use that until it is getting close to expiring, and then get the asylum-pending EAD. 3 – If you get referred to court, you can renew your EAD as before. It is no problem and not harder to get than when you are at the asylum office. 4 – The first EAD is fast, but renewals easily take a year. If you file to renew before the current card expires, your card will be automatically extended upon issuance of the receipt for 540-days, so you should not have gaps in employability. Also, USCIS may pin the EAD to the asylum application, and then you will not need to renew it. We shall see if that happens. 5 – You can renew in Immigration Court and at the Board of Immigration Appeals, which is the appeals court for immigration cases. After that, you generally cannot renew. Take care, Jason
Thanks a lot for answering.
If I apply for asylum EAD while I have my opt EAD.Can this consider as a violation against my F1 status?I don’t want to use my asylum EAD ,Just want to have it in my hand.
I know if I use my asylum EAD in an unrelated job to my degree,it may be considered as a violation(Some lawyers says there is a risk at least to loos the status) but what if I only use my opt EAD and not using my asylum EAD?I mean I have two EAD at the same time but I am using only my opt EAD.Is there any risk that I loose my F1 status with this situation?
Thanks
I do not think there is a rule about this, and so I am not sure that there is a definite answer. I think you can argue it different ways. In my own experience, I have not had USCIS decide that a person is out of F-1 status because they got an asylum-based EAD or used such an EAD. However, I guess that is a risk. Maybe you could get a lawyer to research this for you, but again, I have a feeling there is no definite answer. Take care, Jason
Does EAD clock exist while renewing work permit ?
If i already have ead based on asylum. I live in reno nevada and i move to Boston which i already did. My case is now with boston asylum office from sf aslyum office . Now its time to renew work permit. Will this stop ead clock . Or does wad clock exist while renewing or just while applying first time
Once you have the first work permit (meaning the clock has reached 180 days), you no longer have to worry about it, and you are eligible to renew the EAD. Take care, Jason
Hi Jason, thanks for insights on this blog.
1. I went for my first individual hearing in 2019 and a second one in 2020. Nothing really happened during those hearings as the judge only asked my name and established that I was still living at my address. A final hearing was scheduled for March 2022 but was postponed to April 2023 and again for the 3rd time postponed till Dec 2024. Is this something you have experienced in the past?
2. My Ead expired in Oct 2022 and a renewal was filed and a confirmation was sent that my application was received, but since then I haven’t gotten my card. Do I need to be worried?
3. Lastly, I lost my Mom back home on mother’s day, and I am worried about my aged dad. What are my options here to pay my last respect to my mom and also to see my dad at least one more time. Thanks.
1 – It is pretty common for cases to get rescheduled. Things are a bit more stable now, but schedules still change sometimes. You can try to get an earlier date if you want – I wrote about that on April 20, 2017. 2 – These delays are common and if you filed to renew before the old card expired, you received an automatic 540 day extension of the old card. I wrote about that on May 11, 2022. 3 – I am sorry for your loss. Unfortunately, you cannot travel and return to the US if you are in court (one possible exception is for people who have TPS, but even that is potentially a problem – talk to a lawyer if that is an option). You can tell the court about these issues and see if you can get an earlier court date, as discuss in #1. Good luck, Jason
Hello Jason!
I have a pending asylum application at Miami asylum office.
I haven’t change my address since I applied for the asylum. I’m planning to move to a different address in Miami.
Is it enough to fill out the change address form on the USCIS website? Should I send a letter to the Miami asylum office as well?
Also, can the address change possibly trigger to get the interview faster? Or it won’t have any effect? I’m trying to postpone the interview, so I can adjust my status through my employer.
Please advise, thanks!
We generally only file the AR-11 online and have the confirmation as proof that we changed the address. There is no harm in emailing the asylum office directly, as well, but we have not done that, and it seems to work just fine (if you want to email them, you can find the address if you follow the link under Resources called Asylum Office Locator). Also, I do not think that changing the address would trigger an interview – at least we have never seen that. Take care, Jason
Hello Mr Dzubow,
First, thank you for this blog.
I applied for asylum in mid 2017 and haven’t changed my address ever since.
What would happen to my “place in line” if I decide to move to another state? Would I be a subject to LIFO in this case? Thank you.
Moving would not bump you to the front of the line. And since there really seems to be no line, it seems like moving has no real effect. My understanding during FIFO was that if you moved, you were placed in line at the new office as if you had filed at that office, and so you would not fall to the back of the line. I assume that is still true, but I really do not know since things are such a mess. Take care, Jason