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The Fed’s Massive Paperwork Backlog Creates A Gigantic Mass Migration Loophole

For a certain kind of applicant, the backlog isn’t a failure of the system. It’s the entire strategy.

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For 24 years I enforced this country’s immigration laws, and I’ll tell you the most effective way to stay in the United States without much of a case. It isn’t a clever lawyer or a sympathetic story. It’s a stamped receipt from U.S. Citizenship and Immigration Services showing an application is pending.

That receipt has nothing to do with whether the application underneath it is any good. When a nonimmigrant, someone here on a temporary visa, files a timely, non-frivolous request to extend or change status before his stay runs out, the law stops counting unlawful presence against him for as long as the request goes unanswered.

Congress wrote that pause into the Immigration and Nationality Act § 212(a)(9)(B)(iv) and capped it at 120 days, assuming the government would decide these cases in four months. It doesn’t anymore. So U.S. Citizenship and Immigration Services (USCIS) now treats the entire time a case sits pending as authorized. File before your I-94 expires, and the clock that feeds the three-year and 10-year reentry bars stops until someone finally reaches your file.

Consider how long that is. USCIS is carrying more than 11 million pending cases, with a net backlog above 6 million the agency says are within its own control to decide. Some lines run for years. And the pause doesn’t care about the merits. A weak filing stops the clock exactly as well as a strong one, right up to the day it’s denied.

Someone can file, wait two years, lose, and walk away having banked two years of protected presence,........

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