Processing Backlogs in the U.S. Immigration System: Describing the Scale of the Problem

This brief paper summarizes the basic facts about the immigration backlogs, which comprise roughly 24 million cases across the U.S. government. It demonstrates that backlogs are not isolated within certain portions of the system but are rather a systemic and growing problem for all four departments responsible for executing U.S. immigration law. It also shows that except for visa processing, backlogs have not arisen primarily from COVID-19 shutdowns. Instead, they are a consequence of inefficient agency processes that have caused wait times and backlogs to grow during the past decade. This also means that the agencies culpable for the problem will have the most important roles to play in fixing it.

Government agencies process requests for various immigration-related benefits, including travel and work authorization, relief from deportation, and citizenship. A processing backlog develops when the number of submitted requests exceeds the number of processed requests. Congress can also create cap-induced backlogs by setting a legal limit on approvals below the number of requests that would otherwise be approved by the agency. Millions of people stuck in the cap-induced backlogs desperately want to be able to submit applications to join the processing backlogs.

This brief paper focuses only on the processing backlogs. Even if Congress completely rescinded the caps on permanent residence, for instance, the processing backlogs would effectively nullify its action. If the agencies can administratively process only one million green cards annually, authorizing them to approve nine million would simply move immigrants from a cap-induced backlog to a processing backlog. It would not solve the problem. If Congress wants to make any major shifts in immigration policy, it must also address immigration processing.

The U.S. system for processing immigration requests divides its operations among four departments:

1. The Department of Homeland Security’s U.S. Citizenship and Immigration Services (DHS-USCIS) handles the broadest range of requests (petitions by family or employer sponsors, work authorizations, adjustments of status inside the United States, etc.).
2. The Department of State’s Bureau of Consular Affairs processes applications for immigrant (or permanent) and nonimmigrant (or temporary) visas, both of which authorize travel to the United States.
3. The Department of Labor’s Office of Foreign Labor Certification (DOL-OFLC) oversees wage and employment rules for most temporary and permanent visa programs.
4. The Department of Justice’s Executive Office for Immigration Review (DOJ-EOIR) operates what are known as the “immigration courts” and decides on applications for relief from removal.

Table 1 gives a broad sense of the processing backlog by department and the significant changes since 2019. As of June 2022, the DOL-OFLC had a backlog of about 202,539 pending cases—up from 95,579 in 2019.¹ As of June 2022, the DHS-USCIS backlog had reached nearly 8.8 million cases—up from 5.7 million in 2019.² As of June 2022, the DOJ-EOIR backlog was 1.8 million cases—up from 1 million in 2019.³ As of July 2022, the State Department immigrant visa interview backlog was 421,668—up from about 89,655 in 2019.⁴ The State Department does not collect or publish information on the size of its other backlogs. The nonimmigrant 2022 figure in Table 1 (13 million) is equal to the reduction in nonimmigrant visa issuances since March 2020 compared to the same period before the pandemic, and the 2019 figure is based on the pre-pandemic nonimmigrant interview wait times.

The Department of Homeland Security’s U.S. Citizenship and Immigration Services (DHS-USCIS) is the gatekeeper for the broadest array of immigration benefits, including employment authorization and applications for green cards by immigrants already in the United States (see Table 2). This broad jurisdiction makes the DHS-USCIS backlog the most important among the four departments with immigration processing authority. The DHS-USCIS backlog of pending cases has grown more than fourfold from fiscal year 2010 to FY 22—from 2 million in the second quarter of 2010 to 8.8 million in the second quarter of 2022.⁵ This 6.8 million increase represents growth from about the number of cases received in a quarter at the end of FY 10 to the number of cases received in a year in FY 22 (Figure 1).

Figure 2 breaks down the DHS-USCIS backlog by broad type of benefit being sought from 2010 to 2022 (quarter 2 in each year only). Every category of immigration benefits has seen significant increases in the number of pending cases. At 2 million cases, the largest component of the backlog is family-based petitions—a backlog that has increased by 1.3 million since 2010. Employment authorization documents (EADs, or work permits) are second at 1.5 million pending cases, with asylum applicants and immigrants with pending green card applications the most common EAD applicants. About 1.2 million applicants await humanitarian statuses, with asylum, temporary protected status, and nonimmigrant status for crime victims leading this category. Nearly 900,000 legal permanent residents are trying to replace or renew a green card. Naturalization and citizenship applications are the fifth-largest group, with over 850,000 pending cases. New green card applications (or adjustments of status to permanent residence) comprise nearly 800,000 cases. Travel authorization exceeds 530,000 applications. There are almost 179,000 employer petitions. Other types of benefit petitions (mainly waivers of grounds of inadmissibility and changes or extensions of nonimmigrant status) number almost 560,000.

Table 2 shows the growth in backlogs from 2010 to 2022 by detailed form type. By far, the biggest change has been in the number of pending EADs, which increased more than tenfold from fewer than 150,000 in 2010 to over 1.5 million in 2022. This category alone accounts for 21 percent of the backlog increase. This makes sense because employment authorization is often triggered when other applications are delayed. Delayed applications for green cards (443,159) and asylum (397,650) are the most backlogged categories for employment authorization, making this a backlog within a backlog. Over one million of those cases have been added to the backlog since 2016. A similarly startling increase has occurred for legal permanent residents applying to replace or renew a green card. Regulations require that green cards be renewed every 10 years, and the 888,550-person backlog represents nearly an entire year’s worth of applicants receiving legal permanent residence in the United States.

The backlog is causing wait times for benefits to increase dramatically. DHS-USCIS’s reporting on wait times is often difficult to parse because it focuses primarily on the median for completed cases. By not disclosing the average, the agency can keep the longest-delayed cases from influencing the measure of processing delays. Moreover, the agency can carry over a huge number of extremely long-pending cases without affecting its performance measure. Recently, however, DHS-USCIS has started to publish more-detailed processing data, which reveal the wide variance in outcomes even for a single application type in a single year.

Figure 3 shows the median processing times for 2012 to 2022 and the 80th and 93rd percentiles at the most-delayed filing locations for August 2022 for selected form types.⁶ Figure A in the appendix shows a more complete picture of processing times. By themselves, the increases in the medians would be staggering. The average of the median processing times across all forms for which DHS-USCIS reports data increased threefold—from less than 4 months in 2012 to over a year in 2022. However, the 80th percentile at the most-delayed locations was more than double the average at 27 months, and 20 percent of applicants at those locations waited even longer. The I‑90 form to replace or renew a green card shows how slippery the DHS-USCIS’s focus on the median processing time is (second row of Figure 3). The I‑90 median wait is just 1 month, the 80th percentile is 15 months, and the 93rd over 20 months—15 to 20 times as long.

The State Department’s Bureau of Consular Affairs processes applications for visas, which are authorizations to travel to the United States to request admission. Visas are classified either as immigrant or nonimmigrant. Immigrant visas are for prospective legal permanent residents who will receive green cards after their arrival, and nonimmigrant visas are generally for those who are entering temporarily. In 2021, 82 percent of immigrant visas were issued to close family of U.S. citizens and legal permanent residents, 7 percent to employment-based immigrants, 6 percent to diversity lottery winners, and 4 percent to Iraqis and Afghans who worked with U.S. forces.⁷

The immigrant visa process proceeds in two stages. First, applicants submit applications to the State Department. Either the Kentucky Consular Center (diversity lottery) or the New Hampshire-based National Visa Center will determine whether the application is “documentarily complete.” The State Department does not publish any information about applicants who are waiting at this first stage. Second, the applicants await an immigrant visa interview at a consulate or embassy outside the United States. The only backlog data from the State Department pertain to the applications determined to be documentarily complete by the National Visa Center (i.e., not diversity lottery applications).

Unlike for DHS-USCIS, the visa backlog is almost entirely a recent phenomenon. Figure 4 shows the National Visa Center’s immigrant visa interview backlog and the total number of nondiversity immigrant visas issued by month from October 2018 to July 2022.⁸ As of July 2022, the nondiversity immigrant visa interview backlog stood at 421,668—down from a peak of 566,384 in June 2021 but up from an average of about 91,000 in 2019.⁹ Figure 4 reveals that the immigrant visa backlog is almost entirely because the State Department closed consulates in 2020 and kept them in emergency-only status or at reduced capacity for over a year and a half afterward.¹⁰ It shows how even a brief disruption in the system can cause massive, lasting problems.

The State Department does not report who is waiting in the immigrant visa backlog, but Table 3 provides insight into this question by comparing the number of immigrant visas issued before and after the pandemic by category. The numbers of issuances for employer-sponsored categories have mostly increased, with the notable exception of the investor group, which saw the biggest reduction in immigrant visas in percentage terms. Meanwhile, the backlog in the family categories and diversity lottery have decreased substantially by 42 and 49 percent, respectively. The greatest reduction in absolute terms was for U.S. citizens’ spouses and minor children, which dropped by nearly 97,690, but spouses and minor children of legal permanent residents were a close second at a decrease of 90,575.

The number of immigrant visas issued has returned to the pre-pandemic average, yet this rate is insufficient to quickly reduce the backlog. At current rates of immigrant visa adjudications, it will take nearly 10 months to process the July 2022 backlog. Since the State Department prioritizes certain applicants, the wait will be much longer for some people. Although the interview backlog decline since June 2021 has been significant, the decrease appears to have come from the National Visa Center determining fewer immigrant applications to be documentarily complete—that is, from putting fewer immigrants into the interview backlog. This could mean that the National Visa Center has more pending cases to send to consulates or it could indicate a decrease in demand. Unfortunately, the decline in number does not represent more efficient immigrant visa processing.

Unlike for the immigrant visa interview backlog, the State Department publishes no information on the size of its nonimmigrant visa backlog. However, it has occasionally published data on how long applicants wait for nonimmigrant visa interviews, and those intervals indicate that nearly the entire nonimmigrant backlog has developed since March 2020. Figure 5 visualizes the scope of the problem. It compares the number of nonimmigrant visas granted to the cumulative deficit in visas issued compared to the same months before the pandemic (2017 to 2019). As of July 2022, there was a cumulative deficit of about 13 million nonimmigrant visas. This pent-up demand can be reasonably described as a backlog even if these potential travelers have not all had the chance to formally apply yet.

Table 4 shows the number of nonimmigrant visas issued in the months before and after the pandemic and the deficit by nonimmigrant visa category as of July 2022. It shows that the State Department cut over 59 percent of general nonimmigrant visa issuances from March 2020 to July 2022—13 million visas. Moreover, the pandemic slowdown affected nearly all nonimmigrant visa categories. The most affected—both in absolute terms and in percentage terms—was the B1/B2 tourist or business traveler visa classification. With nearly 10.3 million fewer issuances, the category saw a 70 percent cut in issuances. Work-eligible categories (including potentially work-eligible dependent spouses) dropped by nearly 771,000. This drop occurred although the only categories that saw visa increases during the pandemic were the H‑2A, H‑2B, and TN worker categories, which received over 195,000 more visas altogether. This was enabled by waiving interviews for those categories, even for new applicants.

The backlogs translate into longer wait times for nonimmigrant visas. Unfortunately, the State Department reports only the number of days to obtain a nonimmigrant visa interview, so there are no publicly available data on waits to obtain a visa renewal without an interview. Moreover, given the decentralization of interviews, interview wait times vary dramatically around the world. Figure 6 shows nonimmigrant interview wait times in days by visa types for the longest-delayed consular post, the most popular consular post for each visa type, and the average for that type.¹¹ For tourist and business traveler visas, the longest-delayed consulate, in Georgetown, Guyana, has a wait time (887 days) that is almost four times the average (240 days). For student and work visas, the difference between the maximum wait time and the average is even greater.

The Department of Labor’s Office of Foreign Labor Certification (DOL-OFLC) has a narrow niche within the U.S. immigration system: certifying that employers have met the requirements to petition for their workers to receive certain temporary visas or green cards. These categories include only the following: H‑2A temporary agricultural workers; H‑2B temporary nonagricultural workers; H‑1B, H‑1B1, and E‑3 temporary skilled workers; CW‑1 transitional workers in the Northern Mariana Islands; and EB‑2 and EB‑3 employment-based second- and third-preference green card categories, respectively. In conjunction with certification, employers must often obtain a prevailing-wage determination that establishes the foreign worker’s salary.

In 2022, the DOL-OFLC’s backlog was over 210,000 cases—up from about 96,000 in 2019. The largest increases occurred among the labor certification and prevailing-wage applications. Because the DOL-OFLC prioritizes the temporary-worker programs, their backlogs have always remained a small percentage of the total number of applications received. As a result, prevailing-wage determinations and labor certifications end up accounting for 90 percent of the backlog.¹² Table 5 breaks down the DOL-OFLC processing backlog by type of application.

Figure 7 shows the backlogs for prevailing-wage determinations and permanent labor certifications from 2010 to 2022, quarter 3. These backlogs combined have increased from a low of about 28,000 in 2011, quarter 2, to 188,486 in 2022, quarter 3. The increases have been particularly sharp in both categories from 2020 to 2022. Although the DOL-OFLC made concerted efforts in 2010 and again in 2016 to reduce its permanent labor certification backlog, that backlog has reached the highest level since the office created a more streamlined permanent labor certification process in 2004. The DOL-OFLC reformed and centralized the prevailing-wage determination authority in 2010 to streamline its process, but that backlog has also reached a record high.

Once again, bigger backlogs have translated into longer wait times for employers seeking to sponsor foreign workers. Given the prioritization within the DOL-OFLC for temporary workers, the wait times have mainly affected applications for permanent labor certification and prevailing-wage determination requests. Figure 8 shows the wait times for those applications. Wait times for the prevailing-wage determination grew from 67 days in 2016, quarter 1, to 187 days in 2022, quarter 3. The labor certification processing times improved dramatically in 2016, eventually reaching a low of 96 days in 2019, quarter 2, but they have exploded again in the past 3 years, reaching 226 days in 2022, quarter 3. The combined wait time to receive a prevailing-wage determination and then a permanent labor certification was 413 days in 2022, quarter 3.

The Department of Justice’s Executive Office for Immigration Review (DOJ-EOIR) operates what are commonly known as the immigration courts, and its adjudicators (immigration judges) oversee removal proceedings that determine whether someone meets the criteria to be removed or whether they are eligible for relief from removal. Unlike with the other immigration agencies, applicants cannot apply directly to the DOJ-EOIR. A component of the DHS must refer applicants by charging them as removable. Nonetheless, the DOJ-EOIR backlog has grown tremendously since 2009. Figure 9 shows the number of received cases compared with the court backlog. As of July 2022, there were nearly 1.9 million immigration court cases pending—a tenfold increase from the level in 2008. The backlog has increased by over 1 million cases since 2018, with almost all of it coming from referrals from agencies charging immigrants as removable soon after they cross the border.

By far, the most common form of relief sought in immigration court is asylum. As of August 2022, nearly 775,000 people in the backlog had applied for asylum—an eightfold increase from 2008.¹³ Figure 10 shows that the rapid expansion in the asylum backlog abruptly halted in 2021 and 2022. This appears to be largely a consequence of a huge decline in the number of asylum cases filed and a huge increase in cases being closed. The growth in the asylum backlog slowed in 2020 and 2021 because court processing at the early stages slowed down significantly.

Once again, the longer backlog has led to longer wait times for the outcome of cases. In 2022, the average case took over 3 years to complete—double the length of cases in 2020 (Figure 11). Cases in which the applicant actually won their quest to stay in the United States took over 4 years, and again, because of the decentralized handling of the applications, there are wide disparities among locations. In the most delayed state, Illinois, the average case in which relief from removal was granted took more than 5 years and 4 months. These staggering times have occurred despite the number of DOJ-EOIR adjudicators having doubled since 2016.¹⁴ The decision to close the immigration courts during the pandemic has created backlogs and wait times that will require drastic actions to undo.

All four departments of the federal government that handle immigration processing are in crisis. Backlogs are delaying tens of millions of applicants for immigration benefits. Wait times are reaching unimaginable levels—now best measured in years, not months or days. The utter collapse of the immigration system began years ago. Developing slowly at first, the government’s actions to shut down most processing has created a massive buildup of work. This brief paper is about the scale of the problem, rather than solutions, but it is clear that the government needs to invest in better systems and, perhaps as importantly, to create more-resilient policies that prevent such massive backlogs from developing.