DHS / US CIS Issues

Legal case: I-140 revocation

Firstland International, Inc. v. INS, No. 03-6139 (2nd Cir. Aug. 2, 2004) was just decided in the Court of Appeals today. The Court agreed with our argument that an approved immigrant visa petition cannot be revoked after the beneficiary has set forth on his or her journey to the US. The decision is on good legal grounds which I believe will withstand further challenge unless there is a statutory amendment.



http://www.ilw.com/lawyers/immigdaily/cases/2004,0804-Chai.pdf
 
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DOL / Backlog reduction / PERM in 2004

Courtesy of "www.cyrusmehta.com"

August 2 2004
DOL PUBLISHES BACKLOG REDUCTION RULE

by
Cyrus Mehta*

The Department of Labor (DOL) published an interim final rule on July 21, 2004,
that attempts to reduce the backlogs in the labor certification process.

As a background, labor certification is generally the first step when an employer
sponsors a foreign employee for a green card. In order to obtain labor
certification, the employer must establish that it was unable to find sufficient US
workers for the position.

There are generally two ways for an employer to file a labor certification
application. The traditional method involves the employer filing an application
with a State Workforce Agency (SWA). After the application is reviewed, the SWA
closely supervises the employer’s recruitment effort to find out whether US
workers are available for the position or not.

The fast track method, known as Request for Reduction in Recruitment (RIR),
allows the employer to establish unavailability of US workers through its own
recruitment method prior to filing the application with the SWA.

In both the traditional and RIR filings, the federal regional office of the
Department of Labor (DOL) ultimately reviews the application and has the
authority to either grant or deny labor certification. Whether an application is
filed under the traditional or RIR method, it passes through a two-tier review:
first with the SWA and then with the Regional Office.

Prior to an immigration-filing deadline of April 30, 2001 under Section 245(i), the
SWAs saw a huge surge of labor certification filings resulting in an
unprecedented backlog. Until recently, some SWAs were still processing RIR
applications filed in April 2001. Cases filed under the traditional method got even
further backlogged. Thus, many have been waiting now for several years for an
initial review with a SWA.

The DOL estimates that approximately 236,000 applications were filed to meet
the deadline of April 30, 2001, at a time when less than 100,000 were filed in an
entire year. At the start of April 2003, over 280,000 permanent labor certification
applications were in the SWA processing queues throughout the nation. The
DOL funded a study to identify strategic options to reduce backlogs. One
recommendation was for the processing to be done in one location and to
consolidate the functions currently performed separately by the SWAs and the
Regional Offices. The DOL initiated a pilot program to test the feasibility of
centralized processing and found that one stop processing achieved efficiency
and economies of scale.

However, in order to formally consolidate the two-tier processing, the DOL
needed a rule to amend its existing regulations.

The interim final rule will authorize the National Certifying Officer (who is the
Chief, Division of Foreign Labor Certification) to direct a SWA or a Regional Office
to transfer to a centralized processing site applications either pending with a
SWA or with a Regional Office. The rule also allows the National Certifying Officer
(NCO) to issue a directive to the SWAs and the Regional Offices stating how
pending applications are to be identified for centralized processing and where
they are to be transferred. Once the application is transferred, the centralized
processing site will perform all required functions of the SWA and the regional
office.

The rule further states that if the labor certification presents a special or unique
problem, the centralized processing site, in consultation with or at the direction
of the NCO, may refer the application to the NCO for determination.

The backlog reduction rule should not be confused with PERM, another proposal
to streamline labor certification procedure. PERM would allow labor certification
applications to be processed and approved within weeks rather than years.
Instead of the DOL reviewing or supervising the employer’s recruitment, under
the PERM program, the employer would have to make attestations that it has
conducted a good faith recruitment in accordance with the new regulations.
Under PERM, even though the case may be approved in a few weeks, the DOL
may still flag such a case for an audit.

The new rule indicates that PERM is expected to be finalized in 2004. Even if the
PERM rule is published in 2004, it will take at least 120 days for it to become
effective.

The good news is that the backlog reduction plan goes hand in hand with PERM.
PERM can only become operational if the backlogs under the existing system are
eliminated. Thus, the promulgation of this rule could herald that PERM is coming
soon!
 
Ombudsman

Foreign Press Center
Washington, DC

July 20, 2004

On-the-Record Briefing

“21st Century U.S. Immigration: Welcoming Immigrants to America”

Prakash Khatri
Citizenship and Immigration Services Ombudsman
U.S. Department of Homeland Security

U.S. Department of Homeland Security Citizenship and Immigration Services Ombudsman Prakash Khatri
spoke to foreign journalists gathered at the DOS Washington, DC, Foreign Press Center about new
developments in U.S. Immigration: the “21st century immigration system that truly welcomes immigrants
from all over the world,” and how the U.S. Department of Homeland Security is hoping to be a part of that.

DHS Citizenship and Immigration Services Ombudsman Prakash Khatri detailed to foreign journalists --
DHS structure beginning first by explaining that when President Bush signed the Homeland Security Act of
2002, “22 different agencies were all consolidated under one roof” -— different, disparate agencies were
“all brought together under the Department of Homeland Security,” DHS Ombudsman Prakash Khatri said.

And, the result is that out of the 22 agencies coming together, which included the Customs Department and
the Immigration and Naturalization Service, “immigration has taken some real prominence in this new
Homeland Security structure.”

Next, DHS Ombudsman Prakash Khatri explained the parts of immigration procedure now under review by
the U.S. Department of Homeland Security Office Citizenship and Immigration Services Ombudsman.

Mr. Khatri said that “we are making recommendations” regarding the issues of “prolonged processing
times” “immigration benefits fraud,” the issue of “limited case status information” are now being identified as
areas for review.

“Our key thing, our key primary objective is being to develop thoughtful and practical recommendations that
support the effective 21st century immigration system, that not only ensures national security, which is,
obviously, a key aspect of everything that any country would do, but also promotes efficiencies through the
use of modern technology and also offers improved customer service,” DHS Ombudsman Prakash Khatri
said.

“To do those three in a way that is non-intrusive, customer-friendly, and shows the welcoming nature of the
American immigration system is truly what we’re all committed to. And that’s what we’re hoping that we
will be able to do.”

What has your organization done? -- DHS Ombudsman Khatri asked rhetorically.

Relaying information included in the first Department of Homeland Security annual report, DHS
Ombudsman Khatri said that “we have made three key recommendations in this first year. One was to
streamline the immediate relative immigrant processing system. The second was to re-engineer the
Permanent Resident Card replacement program, which many permanent residents of the U.S. who travel
quite frequently were having issues with. Also, another major area was the employment-based immigrant
visa processing system. And so, those are the three key areas that we made substantive recommendations
on and our annual report does document that.”

Adding that, “we made a recommendation on the family-based immigrant processing. Here in the United
States, if you have a foreign national that has come to the U.S. and is married to a U.S. citizen or is the
parent or child of a U.S. citizen, they can file, in most cases, an application to get their green card here.”

DHS Ombudsman Prakash Khatri told journalists that, “now, when they do that, quite often it would take
anywhere from four months in some areas to as much as three years in others. And what we did was, we
actually made a recommendation to do the processing in a manner which would substantially increase the
speed.”

“We’re hoping that across the board, as we make the recommendations, these U.S. Citizenship and
Immigration Services will take on the opportunity to look at our recommendations as they have and move
forward, and we will make a substantial difference,” said U.S. Department of Homeland Security
Citizenship and Immigration Services Ombudsman Prakash Khatri.

http://www.fpc.state.gov/

http://fpc.state.gov/fpc/34516.htm

Interesting parts from Press Conference...........................................................

QUESTION: Parole is not a very nice term.

MR. KHATRI: Truly. "Parole" is not a very gentle term. That is certainly something that's from many, many years back; it needs to be changed. "Alien" is not a very good term either, but it is used routinely in our laws. So that's something that, you know, will take some time but we will change those things.

MR. BOOKBINDER: Mr. Khatri, what would be the best way for people who want to provide information, solutions, and problems? What's the best way for them to do that?

MR. KHATRI: The best way to do it is, obviously, through the 21st century methods of e-mail. And our e-mail address is CISombudsman@dhs.gov. So, it's CISombudsman, o-m-b-u-d-s-m-a-n, @dhs.gov. And again, you can find us also on the DHS website, which is at dhs.gov and we have links from there to our e-mail as well, so that would be the best way.
 
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180 day portability / AC-21

Courtesy of "www.immigration.about.com"

The Latest BCIS Memo on the 180-Day Portability Rule

The BCIS recently released a new memo about the 180-day portability rule. In addition, misconceptions and confusion about the rule itself, as well as previous communications from the INS. Leading immigration attorney Carl Shusterman sheds some light on the issues in his recent chat with us on:

Changing Employers When You're Being Sponsored for a Green Card

Jennifer Wipf: I am calling Mr. Shusterman. Please keep in mind that we have many, many questions. He will answer in the order that makes the most sense for the chat, and if a question is the same as someone else's, in the interest of time, he will only answer the same thing once, for the most part.

Most importantly, please remember that all questions and answers here are of a general nature and cannot be construed as legal advice.

Carl Shusterman: Good evening everyone. The question of the 180-Day Portability Rule has been asked thousands of time, since the law was enacted in the year 2000. The rule is contained in section 106(c) of the American Competitiveness in the 21st Century Act of 2000 (AC21). Although it has been almost 3 years since the law was enacted, the BCIS has yet to issue regulations implementing the law. However, on June 19, 2001, the INS issued policy memoranda explaining the agency's interpretation of various sections of the law, including the 180-Day-Portability Rule. More recently, on August 4, 2003, the BCIS released a memoranda explaining how the rule would apply in cases where the I-140 visa petition was withdrawn, denied, or revoked. The purpose of tonight's chat is to discuss the ramifications of this latest memo, so let's get to the questions.

Question #1:Hi. In my case I changed jobs about 1 month after filing my I-485 because my employer went out of business. That happened 10 months ago. My I-140 was approved prior to filing I-485 and to the best of my knowledge my previous employer hasn't withdrawn it. What worries me is the wording "I-140 immigrant petition shall remain valid when an alien changes jobs, if the I-485 has been filed and remained unadjudicated for 180 days or more." At the time of changing jobs the I-485 hadn't been pending for 180 days yet. So, is my I-485 still valid? If it is, what documents should I file with the BCIS to prove that my current job is the same as the one before? How soon after changing jobs must I do it? Are there precedents, in which a green card has been denied in cases like mine?

Carl: Good question. There is a lot of confusion, not only among immigrants, but among immigration attorneys as well, as to the meaning of the 180-day rule. It is not necessary for you to remain with your initial employer for 180 days or more after the I-485 is submitted. What is important is that the I-485 not be adjudicated during the first 180 days after submission. In your case, it has been over 10 months since the I-485 was submitted, so the 180-day portability rule applies.

Per the June 19, 2001 memo, you must supply the BCIS with two documents. The first document is a letter, stating that, at the time you submitted the I-485, it was your intention to remain with your initial employer indefinitely. The second document is a letter from your new employer stating that your new job is the same or similar to the job for which your labor certification and visa petition were approved. These letters may be submitted at any time, but the process is much smoother if they are submitted before you receive any notification regarding your application, from the BCIS.

The employer letter should contain the job title, job description and salary of the new job. To determine whether the new job is the same or similar to the old job, the BCIS consults the Labor Department Dictionary of Occupational Titles (DOT) or the online O*NET Classification System (one of the two), or similar publications. The memo prohibits INS officers from denying I-485 based on failure to demonstrate that the new job is in the same or a similar occupation as the initial job unless they have consulted, on a case-by-case basis with BCIS headquarters. Shusterman.com links to the June 19, 2001 memo at http://shusterman.com/toc-gc.html#2A1 and to the DOT and the O*NET from http://shusterman.com/toc-dol.html#7.

Question #2: I was laid off after less than 180 days on the job, got a new job, same as the old, when I-485 was still pending, for less than 180 days. Up to now, my I-485 has been pending more than 22 months after approval of I-140 and no revocation. Can I use AC21?

Carl: Absolutely.

Question #3: In the case of concurrent filing of the forms I-140 and I-485, are the 180 days counted from the day of I-140 approval or from the date of I-485 receipt?

Carl: The 180 days always starts when the I-485 is received by the BCIS. This person brings up a good point. Since July 31, 2002, the INS began allowing I-485 to be filed simultaneously with I-140s as long as the priority date is current.

Question #4: I am currently working as a physician in underserved area on an H-1B visa that is being renewed for another 3 years. By Nov. 1st, 2003 I will complete my 3 years requirement for working in an underserved area. I have an approved labor certification and I just applied for I-140 Immigration petition. By Nov. 1st I am going to apply for adjustment of status. I am currently interviewing for a new job and I am intending to transfer jobs 6 months after filing for adjustment of status according to the portability law. Questions: 1. What do I need to file for new paperwork for a transfer of jobs (like renewal of H-1B or an employment authorization)? 2. If I transfer jobs and stay there for one year for example, can I change for a third job even though I won't have the green card yet?

Carl: First, it is necessary for you to file a letter with the BCIS stating that it was your intention to remain at your initial job indefinitely at the time that I-485 was filed. It is not supposed to be your intention to change jobs on day 181, after the I-485 has been filed. As long as you remain in the same or a similar occupation, you can move to job #2, job #3, etc. without having an impact on your eligibility for adjustment of status. Also, since you mention that you work in an underserved area, it is interesting to note that the location of the job is irrelevant to the portability process.

Question #5: Good Evening. My question is as follows: As per the discussion section of the memo, it states that an approved petition (I-140) is considered valid, provided that there is a bonafide agreement of employment whether it be a present or a prospective/future employer, on approval of permanent residence. Does this mean that we can change employers, etc. and should we have a contract with a prospective employer? If so, on approval of the green card, can we then switch jobs? If this is so, how long after permanent residence approval should we join this future employer?

Carl: The memo reminds service center directors and regional directors that there is no requirement that an applicant be employed by the petitioning employer or by the subsequent employer in order to qualify for adjustment of status. However, after the adjustment of status, it is important that the applicant begin working immediately for either the petitioning employer or any subsequent employer who advised the BCIS that they were offering the applicant employment. As a practical matter, it is unlikely that an INS service center would grant an application for adjustment of status based on employment to a person who was not already employed by either the petitioning employer or by a subsequent employer.

Question #6: I'm an H-1B visa holder and my labor certificate has been approved, as of Nov. 2002. I already applied for the I-140 and I-485. Unfortunately my I-140 was denied due to supposed inability of my employer to pay, due to current economic issues. Is there any possibility that I can keep my LC with another employer to finish my green card processing or do I have to start over now?

.....................................................
 
Continued

...........................
Carl: Unfortunately, you need to start over.

Question #7: Hi! Thanks a lot for the exceptional service. Need your suggestions. My (and family's) I-485, EAD, AP were applied on July 15th. EAD & AP just got approved (as per online status) last week. I am going to lose my job in 1 to 2 weeks (hardly 60 days after the I-485 receipt date). But my employer will not revoke the I-140. I just got an offer from another company, but am unable to decide because of the 180 days rule. In view of the recent AC21 memo which seems to have two conflicting statements regarding validity of an I-140 in the case of a second employer before 180 days. What would you suggest? Even if I join the new company before 180 days and my old company retains the I-140, can I still claim that the original sponsor is still supporting my green card (even after laying me off) and for the time being that I'm working for the new company (on EAD or H-1B, another question). Then I could say I will return to the old company as soon as they find a project for me? I want to specify that my I-485 was applied after approval of my I-140. Thanks.

Carl: The 180-day portability rule was designed for cases such as yours. None of the four BCIS service centers which adjudicate I-485s do so in less than a year, much less 180 days. Your question is based on the misconception that any change of employment within the first 180 days after the I-485 is submitted may be fatal to your application. The truth is that since you intended to work for the initial employer, but were laid off, it is your responsibility to find a new employer who can offer you a job in the same or a similar occupation as soon as possible. I would urge you to wait until 180 days have passed since the submission of your I-485, and then submit your intent letter and a letter from your new employer in order to invoke the portability doctrine.

The reason that I urge you to wait until after 180 days, is that if you notify the BCIS of your change of employment now, the agency could deny your I-485 before the 180 days have been reached and you would not be able to take advantage of the portability rule.

Question #8: In the text of the 180 day rule what does "similar occupation" mean? Is it the same position at another company, or the same type of department or industry? Or is it more based on education and experience? Are there any guidelines?

Carl: As I stated earlier in this chat, the only guidance regarding what is meant by "the same or a similar occupation"" is contained in the INS memo of June 19, 2001, which directs officers to consult either the Labor Department's Dictionary of Occupational Titles (DOT), the online O*NET Classification System or similar publications. In my view, and I cannot guarantee whether the BCIS shares my view, a programmer/analyst with an approved labor certification and an approved I-140 should try to get another job as a programmer/analyst if he is terminated, laid off or wishes to change employers. If the programmer/analyst gets a new job as a programmer/analyst supervisor for $10-20K more than his initial supervisor, I very much doubt that the BCIS will deny his application on the basis that the new job is not in a similar occupation. However, if the programmer/analyst becomes a vice president of marketing for an IT firm, there may be a question as to whether his job duties have been altered so radically that he is no longer in the same or a similar occupation.

I would advise caution in accepting a new job. Consider the situation carefully. To date, none of our clients have been denied adjustment of status under the 180-day portability rule and I am not aware of any case that is being litigated due to such a denial.

Question #9: With regard to the new memo, how do I submit evidence to prove my new job is similar to my previous one used to file for my labor certificate? Generally, why would an employer decide to withdraw approved I-140 after they lay off people for whom the I-140 is applied? Is it common in US corporations? And if I change jobs multiple times after 180 days, do I submit evidence to BCIS multiple times?

Carl: Good question, probably the first that relates to the August 4, 2003 BCIS memo. Although it is not common practice for an employer to withdraw an I-140 visa petition after it is submitted, there may-in some cases-be "bad blood" between an employer and an employee who has been terminated for cause or has quit his job in search of new employment. The August 4 memo provides that where an I-140 is withdrawn, on or after the 180 day period, and the applicant has not submitted evidence of a new qualifying offer of employment to the BCIS, the agency will issue a Notice of Intent to Deny (NOID). If the applicant answers the NOID by submitting evidence of a new qualifying offer of employment, the I-140 will remain valid, and the I-485 will receive regular processing. However, if the applicant fails to establish that the offer of employment is in the same or a similar position, or if he does not respond to the NOID, the I-485 may be immediately denied. Alternately, if the I-140 is either withdrawn or revoked before the I-485 has been pending for 180 days, the BCIS may deny the I-485. If the I-140 is revoked because of fraud, the BCIS may deny the I-485 immediately.
 
AC-21 / portability

Courtesy of "www.usavisanow.com"

Adjustment Portability Before I-140 Approval - June 25, 2004

June 25, 2004

Adjustment Portability Before I-140 Approval

Notwithstanding the August 4, 2003, memorandum from Mr. Yates, it remains unclear whether an adjustment applicant may accept new employment if his or her adjustment of status application has been pending for over 180 days, but the underlying I-140 has not yet been approved.

The memo suggests that the I-140 must be approved before an adjustment applicant may port to another employer, but Mr. Yates indicated at the June 2004 AILA conference that this remains an open and unresolved issue.
 
brothers and sisters (as in BIG BROTHER!)

Courtesy of "www.immigration-law.com"

08/07/2004: Where is the PERM?

Probably, by now people are sick to hear the term "PERM." There have been few "promised lands" which have not been kept and frustrated people as bad as this one. Ever since the DOL released the so-called "Five-Year Strategic Plan" in 1999 announcing the backlog reduction strategies which included the backlog reduction for existing cases and start of the PERM program for the new cases, it has surfed unknown territorial water over and over with no end in sight. After a struggle, DOL was successful in releasing the "proposed" regulation. Reportedly, the proposed regulation produced mountains of comments of pros and cons, giving the DOL an excuse for the further delays. Along the way, there was a change of leadership in the Foreign Labor Certification Division in the DOL leading to another delays. For heaven sake, despite the hurdles after hurdles, the DOL was able to work out the final regulation under the new leadership and forwarded it to the OMB in the White House in February 2004. When the 90-day review ended on May 21, 2004, the DOL reportedly requested the OMB to extend the OMB review because of the comments from its sister and brother agencies of Homeland Security Department, State Department, Department of Justice, etc. In the June AILA National Conference in Philadelphia, the Chief of the Foreign Labor Certification of DOL who was in charge of the PERM disclosed that the final regulation had to be revised because of the room for fraud" concerns addressed by its sisters and brothers. The question remains where these brothers and sisters were when the proposed regulation was released! Now this regulation is being held hostage in the White House. The American economy is continuously struggling despite the rosey picture some so-called "financial analysts" and political pundits attempt to draw through the cable TVs, Internets, and printed newspapers. Unemployment rate continues to remain high without much changes. Outsourcing has already given a trouble to the Bush Administration in the 2004 election politics. Now, we start hearing a rumor that the concept of "21-day" approval of foreign labor certification rather than taking years and years is the last "word" which the White House wants to hear under the current election environment. Anti immigration forces have also been working hard to picture the PERM program as "opening a flood gate for the foreign cheap laborers." The truth of this rumor is still unverificable. One thing we can only tell is that the regulation is going nowhere in the OMB, White House. The 90-day extension will reach on August 20. God knows what will happen then. No wonder why people hate politics and the term "politician" is not a noble term, unlike "statesman." Come November, whoever wins, we want to see a life which is not "totally" washed out by politics.
 
BAcklogs / AC-21

Courtesy of "www.immigration-law.com"

08/07/2004: USCIS Reports Reduction in Backlogs: Where is the Beef for the Employment-Based Cases?

Mr. Aquirre, Director of USCIS reportedly disclosed today that at the end of July, the national backlog was reduced from 3.7 million cases to 2 million. In Houston, officials report that the time it takes to process a permanent residency application has been cut in half, from up to two years in June to about a year at the end of July. The officials attribute the backlog reduction at the local levels to an aggressive effort to process old cases and at the same time to increase appointments at the front ends. This reporter has already reported that in the family-based immigration cases, it currently takes approximately one year or less to schedule interviews wherein they determine approval or denial of the cases. Expansion of the Dallas District type of Pilot Program may further help to reduce the backlogs in the family-based immigration cases. For the news report, please click here.
In the emplolyment-based immigration cases, the USCIS announced that it would achieve the reduction of backlogs simultaneously from the two ends: At one end, it would accelerate the name-check and fingerprint scheduling for existing cases to reduce the backlog cases in the pipelines, and at the other end, it would commence "concurrent adjudication of I-140 and I-485" for the new cases at the timeline of I-140 processing. The goal was allegedly to reach a certain point where the processing times for existing cases and the processing times for new cases become the same. For the frontend backlog strategy, the USCIS allegedly is also testing water an aggressive Pilot Program through the California Service Center to adjudicate I-140/I-485 cases within 90 days. However, there are no visible results reported anywhere, at least at this point of time. There is no visible sign of change of processing times for I-140 and I-485 cases in the USCIS processing time reports which should report the pace of cases which are already in the pipeline. In fact, it rather produced a negative fall-out. The Service Centers appear to be not consistent when it comes to the concurrent I-140/I-485 adjudications. But in certain Service Centers, there is a sign that they process I-140 and I-485 concurrently even for existing cases, resulting in I-140 petitions being stuck pending processing and adjudication of I-485 applications. This has created a tremendous problem to the applicants who need change of employment using AC 21 which allows the I-485 applicants to change employment after 180 days of filing inasmuch as I-140 has been "approved." Consequently, unless the USCIS achieves the concurrent adjudication within 180 days of concurrent I-140/I-485 filing, the current concurrent I-140/I-485 adjudcation policy produces chilling effect on the legislative intent of AC 21 making this provision a mockery. The current pace of processing of concurrent I-140/I-485 produces a large number of victims who have lost but located a similar job after 180 days of filing but are facing denial of I-485 because of the unadjudicated I-140 petitions. We do agree with the USCIS that administratively it would make more sense to process I-140 and I-485 by the same people in the same production unit within the building rather than the two different units handling these cases, but the USCIS should release I-140 processing from being held a hostage of I-485 processing/adjudication considering the above-mentioned unintended consequences and chilling effects on the AC 21 legislation.
 
Priority dates and Murthy

Courtesy of , you guessed it: Murthy. Thanks for looking so far!

Backlog Reduction may Impact Employment Priority Dates
Posted Aug 06, 2004
©MurthyDotCom
The U.S. Department of State (DOS) Visa Bulletin for August 2004
mentioned that the priority dates in the employment-based categories could
retrogress at some point in the future. One of the reasons for this is that the
USCIS has embarked on a series of programs to reduce their case
backlogs. Regular MurthyDotCom and MurthyBulletin readers are familiar
with some of these efforts.
©MurthyDotCom
Background
©MurthyDotCom
One of the side effects of the faster processing efforts is that faster
processing of green card cases creates an increased demand for immigrant
visa numbers. Since there are a limited number of immigrant visas issued in
each category each year, the increased demand causes backlogs in
various categories. This has already resulted in the regression, or going
backwards, of certain family-based priority dates. While the priority dates in
employment-based cases remain current for all categories, increased
demand could change this situation in the future. For more information on
priority dates and their importance in the immigration process, see our
MurthyDotCom article, Priority Dates: How do they Work? Basically, in
order to complete the green card process either through consular
processing or adjustment of status, there must be an immigrant visa
number available. These visa numbers are allocated by DOS pursuant to
annual legal limits. The tracking as to which cases have a visa number
available to them, based upon the date the case was filed, is set out in a
monthly DOS publication known as the Visa Bulletin, which we make
available on MurthyDotCom.
©MurthyDotCom
Family-Based Cases
©MurthyDotCom
The cut-off dates given in the Visa Bulletin are based on estimates of the
demand for visas. Since this demand is directly tied to how fast the DOL
and USCIS process their respective portions of the green card cases, when
they are faster, the demand increases. Certain family-based categories
have already experienced retrogression in the cut-off date. This increased
demand is expected to cause the forward movement of the family-based
cut-off dates in other categories to either slow or stop.
©MurthyDotCom
Employment-Based Cases
©MurthyDotCom
Employment-based (EB) cases may also feel the impact of the increased
demand in the future. The Visa Bulletin for August 2004 indicates that it
may become necessary to establish cut-off dates in employment-based
categories at some point in the future based on demand for visa numbers.
The DOS, however, states that it is not known if or when this will happen in
Fiscal Year (FY) 2005, which begins on October 1, 2004. If cut-off dates are
established for affected cases, it would have an impact on both the ability
to file the final portion of the green card case, as well as the ability to
complete the case. That is, in the example of an adjustment of status, it is
not possible to file an adjustment of status case unless the priority date is
current. Once the adjustment of status is filed, if the cut-off dates
retrogress, it is not possible to obtain permanent residence until the visa
number becomes available. However, if the I-485 is filed when the numbers
retrogress, the applicant has historically been able to remain in the U.S.
and obtain an Employment Authorization Document (EAD) and Advance
Parole (AP) extensions, if otherwise qualified. Also, it would likely help to
have a case filed under the EB Second Preference (EB2) category, since
the backlogs could increase in the EB Third Preference (EB3) category.
©MurthyDotCom
Conclusion
©MurthyDotCom
At this point, the issue as it relates to employment priority dates is
speculative and based on a future estimate if cases are processed faster.
The priority dates remain current in all categories. Moreover, even if cut-off
dates are established at some point during FY2005 or thereafter, it may not
be for all categories. This information therefore is not cause for any urgent
concern. It is an issue of which to be aware for the future and to consider
when deciding whether to proceed with filing a green card case now or wait
for some later event. It may be better to file sooner to establish the earliest
possible priority date in case the issue of obtaining an earlier priority date
becomes important once again.
 
Immigration

Editor's commentary: "www.ilw.com"

Editor's Comments
Abolish Family Immigration?

With an estimated 10 million undocumented aliens living and working in the US, it is undisputed that our immigration laws are broken. Our current immigration laws unfortunately do not reflect the fact that most immigrants come to America to work. Any attempts to fix the current immigration system must address the reality that our country's immigration laws are mostly focused on family-based immigration. To align our current immigration laws with reality, family immigration numbers must be trimmed to make room for more employment-based immigration. Until our nation's immigration laws incorporate this reality, the number of undocumented will continue to grow and our immigration system will continue to be broken. It may be politically difficult to trim family quotas since waiting times are already very lengthy. It may be much easier politically to eliminate entire categories of family immigration rather than reduce quotas for those categories. Painful as this might be, we do not see any politically feasible way of legalizing the undocumented millions. Legalization would be not just a milestone in immigration law, it would be a major social, cultural, political event. To achieve legalization, creativity of the first magnitude will be required. The elimination of several categories of family immigration may be just the right creative solution to break the legalization logjam.
 
President / Mexicans

Courtesy of "www.ilw.com"

President's Remarks to the Unity Journalists of Color Convention
Washington Convention Center
Washington, D.C.

[ ... ]

Q Early in your administration, you talked a good deal about immigration reforms and possibilities there. I have not heard you talk to that issue so much recently. I wonder what you still think is possible, given the circumstances that we find ourselves in today. What is doable, particularly in the short-term?

THE PRESIDENT: Actually, I have talked about it lately. I talked about it this winter, because I think it's necessary that we reform our immigration laws. I believe where there's a willing worker and a willing employer, and they can't find work here in America, the people ought to be allowed to be here legally to work, that's what I believe. And I believe there ought to be a process that allows a person to work here legally, and go home, and come back without fear of being arrested. (Applause.)

I think there needs to be a -- first of all, this will help bring people out of the shadows of our society. This will help kind of legalize a system that takes place everyday, without employers feeling like they have got to be subjected, or employees feeling like they're going to be arrested -- subjected to fines or arrested. And so we need to reform our immigration laws.

Now, the issue there is whether or not people automatically get to step in the front of the line when it comes to citizenship. I don't think they should. I think those who have been waiting in line to be a citizen ought to be allowed to keep that priority in line. I think people ought to -- in this process ought to be allowed to apply for citizenship, but I don't think they ought to be treated specially, in relation to those who have been in line for quite a while. And in order to solve the logjam for citizenship, Congress has got to raise the quotas on who can become a citizen. And I support raising the quotas on certain population groups, like the Mexican nationals, on who can become a citizen. (Applause.)

The long-run solution, particularly to Mexican immigration, is going to be to help Mexico develop a middle class. That's why free trade is so important between our countries. That's why we better be careful about rhetoric that begins to unwind a free trade agreement that is making an enormous difference in the lifestyles of people in Mexico. See, trade, to me, is the great hope for developing nations. That's why I was a strong supporter of AGOA, the African Growth and Opportunity Act. It gives people a chance to have a job that's a meaningful job, because of the trade between the world's largest market and their countries. NAFTA has made a big difference in lifting lives of people. It has improved the living standard in Mexico.

Listen, people are coming to the United States to work from Mexico because they want to make a living for their families. And if they can't make a living for their families at home, they'll come here to work. And, therefore, we must work with Mexico to develop a middle class in the long run, so people can do their duty as a parent at home. That's what they want. And we need to change our immigration laws. Will it get done? Probably not this year. This is an election year -- not much gets done, except for a lot of yelling and elbowing. But I would like to see reasonable immigration reform come out of the Congress.

[ ... ]
 
Judiciary

Courtesy of "www.ilw.com" and "www.law.com"

3rd Circuit Urges Congress, Executive Branch to Reform Asylum Process
Panel labels State Department reports 'out-of-date'

Shannon P. Duffy
The Legal Intelligencer
08-09-2004


In a rare instance of the judiciary speaking directly to the other branches of government, the 3rd U.S. Circuit Court of Appeals last week urged Congress and the executive branch to remedy what it called a "disturbing trend" in which courts are forced to base decisions in immigration cases on "grossly out of date" information about world affairs.

Because asylum cases move through the courts slowly, judges trying to decide whether immigrants deserve protection from a hostile foreign government often find themselves reviewing decisions based on State Department country reports that are up to 4 years old, the 3rd Circuit said in Berishaj v. Ashcroft.

In a fast-changing world, that means they can be missing key information about coup d'etats, outbreaks of ethnic violence, and the rise and fall of repressive regimes.

"In many cases in which country conditions are at issue, the administrative records are grossly out-of-date, requiring us to engage in the rather artificial exercise of ruling on situations that existed several years in the past, but do not exist today," Senior 3rd Circuit Judge Edward R. Becker wrote.

"As a consequence, we become like astronomers whose telescopes capture light rays that have taken millions of years to traverse the cosmos, revealing things as they once were, but are no longer," Becker wrote in an opinion joined by 3rd Circuit Judges Thomas L. Ambro and Morton I. Greenberg.

Courts can't simply turn to a newspaper to get the latest information, Becker noted, because immigration law requires appellate judges to base their decisions only on evidence already in the case file when an appeal is filed.

Nonetheless, Becker found that the court's procedural requirements "do not command blindness to the emerging pattern of stale records."

Becker found that Lek Berishaj's case was a good example of what can go wrong when the system relies on stale information, and he insisted that something be done to fix it.

"We call on Congress, the Department of Justice, the Department of Homeland Security and the BIA [Board of Immigration Appeals] to improve the structure and operation of the system, so that all may have the confidence that the ultimate disposition of a removal case bears a meaningful connection to the merits of the petitioner's claim(s) in light of contemporary world affairs," Becker wrote.

Reform of the system is needed, Becker said, to avoid the "potentially dire consequences of sending such an applicant back to his country of origin to face possible persecution or torture on the basis of such a stale report."

A spokesman for the Justice Department, which litigated the case, declined to comment.

The ruling comes in the case of a man who fled Montenegro for the United States in 1997.

Berishaj, an ethnic Albanian who deserted the Serbian army, said he left because he feared arrest and torture by a regime led by Slobodan Milosevic, the president later deposed after a NATO bombing campaign. When Berishaj's request for asylum came before an immigration judge, the most recent State Department country report on Montenegro was from 1999, when Milosevic was still in power.

Things changed while the case worked its way through the courts; Milosevic is now on trial for war crimes and conditions for Albanians in Montenegro have improved, but the 3rd Circuit said it was legally obligated to base its 2004 review of Berishaj's case as if the conditions described in the 1999 country report still existed.

In Berishaj's case, Becker said, the 3rd Circuit's duty to review the immigration judge's decision was "no mean task" because the immigration judge's opinion was "cursory, thinly reasoned, and discusses the case without any reference to the governing legal standards."

Becker found that the immigration judge concluded that Berishaj's testimony about past persecution was not credible, and that, even if his testimony was true, the "country conditions" in the Federal Republic of Yugoslavia -- which embraced Montenegro at the time of the immigration judge's decision -- had changed such that Berishaj could no longer have a well-founded fear of future persecution.

The immigration judge also rejected Berishaj's claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or CAT, because there was no objective evidence that a return to Montenegro would expose him to torture.

But Becker concluded that the immigration judge's rejection of Berishaj's asylum claim "cannot stand."

The immigration judge's adverse credibility determination "has no basis in the record," Becker found, and the immigration judge also "misapplied the law in concluding that changed conditions in Montenegro have obviated any persecution claim that Berishaj might once have had."

When such an asylum claim is presented, Becker said, the burden of showing changed country conditions is on the government.

"We hold that the government must rebut the alien's well founded fear of future persecution with specific evidence, which it did not produce [in Berishaj's case]," Becker said.

In his asylum claim, Berishaj recounted his experiences in the years immediately before he fled to the United States.

In the summer of 1991, he said he went to Kosovo, a neighboring province of Yugoslavia, to attend a university that conducted classes in his native Albanian tongue. At that time, he said, no university in Montenegro conducted classes in Albanian.

Although Serb forces had taken control in Kosovo in 1990 and had officially closed the university, he said it continued to function underground, with classes held in private homes in Pristina, a major city in Kosovo.

Berishaj said his uncle was one of the leading organizers of the illegal university and that he recruited Berishaj to find private homes in which to hold classes.

He claimed his uncle was arrested in 1991 and again in 1994 for his illegal education efforts and that during his second detention he was beaten over several days.

Berishaj said he, too, was arrested in 1992 for his assistance to the illegal university, was beaten with a rifle butt and detained overnight.

.............................C
 
C

..................................C

Soon after returning to Montenegro, Berishaj said he was inducted into the army and was sent to serve in Serbia, where he spent 11 months. He said he was easily recognizable as an ethnic Albanian in a predominantly Serbian army because Berishaj is a well-known Albanian name.

While in the army, Berishaj said he served as a tank gunman, taking orders from Serbs in charge of the tank. He said was sometimes beaten at the direction of Serbian officers for singing songs in Albanian, and that he stopped speaking Albanian publicly, relying on the Serbian he learned while in the army.

In December 1993, Berishaj said, four policemen came to his parents' house at midnight and took him to fight in Bosnia.

In that tour of duty, he said he was ordered to destroy buildings and houses and to shoot at the army and at Muslim civilians in Bosnia. He said he had no choice but to shoot civilians because his refusal to do so would have meant his own death at the hands of the Serbians.

He said he later fled the army and crossed illegally from Montenegro into Albania, where he spent the next 14 months in hiding at his cousin's home.

Berishaj said the Montenegrin police ultimately located him in September 1996 and detained him for two days. He said he was released from custody when an uncle fabricated a story about Berishaj needing to visit an ill family member and posted bail for him.

Berishaj said he returned illegally to Albania, where he resided until February 1997, when he was smuggled to Belgrade and from there to France, then Brazil, then the United States.

The immigration judge who heard Berishaj's asylum claim found his story "fantastic and ludicrous."

In his ruling, the immigration judge said "the court was dazzled and astounded by the declaration that although he was in control of the tank he had a Serbian officer behind his back pointing a gun at him at all times!"

The immigration judge found his story "ridiculous" and "not supported by one scintilla of evidence."

"A better script could not have been thought about by kings of comedy like Peter Sellers or Mel Brooks," the immigration judge wrote.

Now the 3rd Circuit has ruled that the immigration judge's decision was seriously flawed since it ignored critical evidence that corroborated Berishaj's claim.

"First, Berishaj's story about the operation of the illegal university in Kosovo, and police hostility to it, is perfectly corroborated by an Amnesty International Report from 1994, which is in the administrative record," Becker wrote.

And a 1992 article from the English-language Albanian-American newspaper Illyria profiled another young ethnic Albanian "whose experience as a forced inductee into the Serbian army closely parallels Berishaj's," Becker noted.

Becker concluded that the immigration judge's comments in his opinion were "not only intemperate but singularly unhelpful."

Although the immigration judge found that Berishaj's testimony was apparently implausible, Becker found to the contrary that "the testimony appears eminently reasonable."

An immigration judge, Becker said, "is in no position to comment from his own experience on the plausibility of the cruel practices employed in one of the most heinous conflicts of the modern era."

Instead, Becker found that Berishaj's claims rang true.

"If anything, the tactic of forcing one ethnic minority to kill another is entirely consistent with multiparty ethnic warfare, and there is no substantial evidence on which to conclude otherwise," Becker wrote.

"It seems eminently plausible that the Serbians would require the Albanians to be the ones to shoot the Bosnians, and that they would enforce that role in the manner described -- by having a gunman behind each Albanian," Becker wrote.

"To describe this as a Mel Brooks scenario seems to us bizarre," Becker wrote.

As a result, Becker found that the immigration judge's comments were "not tethered to the record, owing what little support they have to hyperbole and appeals to popular culture -- two utterly inappropriate bases for an asylum decision."
 
EAD (www.immigration-law.com)

02/13/2004: Post Dating of EAD Renewal Available Per USCIS HQ Permission

According to the Nebraska Service Center, the Service Centers were given a green light by the USCIS HQ in September 2003 to issue the "post-date" EAD so that people can obtain a full 12-month
renewed card. Since the EAD holders are permitted to file EAD renewal up to 6 months in advance of the expiration of the current EAD, inasmuch as it is within this time frame, people may be able to
apply for EAD extension early on so that they do not face a crisis of EAD renewal application being still pending at the time of the expiration of the current EAD. Accordingly, people may be able to
request the EAD renewal period from the date of expiration of the current EAD until one year from the starting date. In the renewal application, people may remind the Service Center of November 5, 2003
NSC Q&A so that they can check with the USCIS HQ internal permission back in September 2003.
We commend the USCIS for the right move. It will help somewhat workload of EAD processing. EAD processing takes a large share of the USCIS immigration benefit workloads. Last year, this web site
recommended the legacy INS to adopt this procedure.

07/30/2004: USCIS Published Rule Removing Limitation for Period for EAD

The USCIS published this desirable rule today. This removes the limitation for the USCIS to issue EAD for one-year validity period. Consequently, the USCIS is allowed to issue EAD for period longer or shorter than the one-year EAD which the immigration community is familiar with. The USCIS determine the validity period of EAD each time a new EAD is applied, or a renewal EAD is applied, or a replacement EAD is applied on the basis of the following standards:
Immigration status of the applicant
General processing time for underlying application or petition
Required background checks and response times for background checks by other agencies
Other security considerations or factors.
Where a political asylum is granted by the immigration court, USCIS will issue the EAD valid upto five (5) years. This rule is effective today. EAD Rule.
 
Pilot programs

Courtesy of "www.immigration-law.com"

08/12/2004: USCIS Local District Pilot Program for Non-Employment Based Green Card Applications

This Pilot Program of scheduling interview at the time of filing of I-130/I-485 one-step packet and adjudication within 90 days started at the Dallas District of USCIS. At the Annual National Conference of AILA in Philadelphia in June (as we reported at the time), the Ombudsman disclosed for the first time that he had recommended the USCIS to expand the Pilot Program to other five or six USCIS Districts around the end of July. Now, attorneys report that the New York District indeed has started the Pilot Program. The USCIS has yet to announce such expansion, but apparently the USCIS is expanding the Pilot Program as proposed. Readers are requested to send us information on other local Pilot Programs in other Districts so that the information be shared by immigrants nationwide.
 
Ap

Courtesy of "www.immigration-law.com"

08/14/2004: Timing of Advance Parole Renewal

The I-485 applicants are supposed to keep a valid Advance Parole against the need for emergency overseas travel. In fact, it is mandatory for I-485 applicants other than employment-based
I-485 applicants as their trip without Advance Parole will resulted in cancellation of I-485 applications. For the H and L I-485 applicants, they can travel in H or L status without Advance Parole and without affecting the pending I-485, but even for these applicants, legal counsels usually advise them to keep the valid Advance Parole in their possession for the potential change of circumstances. Just as EAD, the processing of I-131, Application for Advance Parole, has experienced delays, taking months in worst cases. Accordingly, those who already had a valid Advance Parole applied for renewal several months ahead of time considering the processing delays. In the event that Advance Parole is unexpectedly approved quicker than expected and the new Advance Parole is valid from the date of approval rather than expiration of the existing Advance Parole, it results in waste of part of existing Advance Parole, which is not in the interest of the applicants as well as the government.
The practice on starting date of Advance Parole has been frequently changed by the Legacy INS and the USCIS. People also have witnessed inconsistency among the Service Centers and local district offices. AILA has reported that it is the current USCIS policy that if the previously issued advance parole still has more than 120 days of validity time remaining at the time of Advance Parole application adjudication,, the USCIS treats such Advance Parole application as though it is a request for a replacement of existing advance parole document. Therefore, the renewal Advance Parole document will reflect the expiration date of the currently valid advance parole. If at the time of the Advance Parole application adjudication the previously issued advance parole authorization has 120 days or less time remaining, USCIS will issue a new Advance Parole document that will be valid starting from the date the USCIS approved the application. This policy can change when there is a change in processing times.
 
I-485 Approvals

Courtesy of "www.murthy.com"

Comment: It sounds like Murthy just got her I-485 approved! Read!

CSC Cases Now Approved Faster!
Posted Aug 13, 2004
MurthyDotCom
To provide a real-world sense of processing times and patterns to
MurthyDotCom and MurthyBulletin readers, we have been posting
updates on I-485 case approvals received by The Law Office of Sheela
Murthy, P.C. These times are available on MurthyDotCom. Our impetus
for tracking this is the various backlog reduction procedures and changes in
processing protocols that have recently gone into effect at the USCIS.
When there are changes of this nature it is difficult to predict the affect on
actual cases. Therefore, we have been keeping a close eye on the timings
of I-485 case approvals to detect any irregularities or particular patterns.
We are definitely starting to see changes at the California Service Center
(CSC).
©MurthyDotCom
Fastest CSC Case to Date
©MurthyDotCom
While we receive I-485 approvals regularly from all USCIS Service Centers,
we recently had an unusually fast and pleasant experience with the CSC.
On July 27, 2004 we received an approval from the CSC for an I-485 filed in
December 2003. This seven-month processing time was remarkable. It was
a year and a half faster than their published processing dates and ten
months faster than our previous "fastest case." The I-140 had been filed
prior to the I-485 (filed concurrently but not simultaneously) and was
approved just shortly after the I-485 was filed.
©MurthyDotCom
Other Case Approvals the Same Day
©MurthyDotCom
The CSC must have been working hard on July 27, 2004, as we received
four other, unrelated approvals with that date. The next fastest case had
been filed August 12, 2003, giving it a processing time of slightly less than
one year. Here, the I-140 had been approved before the filing of the I-485.
The other three approvals on the same date spanned a full year in their filing
dates. The slowest one had been filed in January 2002 and the fastest in
December 2002. Thus, we are continuing to see random patterns in case
adjudications, including some that are moving much more quickly than they
had been before and more quickly than the posted USCIS processing
times.
©MurthyDotCom
Consequences of Unpredictable Processing Times
©MurthyDotCom
All in all, faster processing times are a good sign. There are some possible
consequences resulting from faster processing times, however. With more
unpredictable and faster processing dates one who is planning to get
married after filing the I-485, with the expectation that the spouse will come
to the U.S. on H-4 status and then file his/her I-485, should keep in mind
that there is no guarantee there will be enough time after filing the I-485 to
implement this plan. Further, if the I-140 is not approved until after the
approval of the I-485, it is questionable whether AC21 is applicable since
the USCIS's current interpretation indicates that the I-140 must be approved
and the I-485 must be pending 180 days before the beneficiary is permitted
to take advantage of the portability benefits available under AC21.
©MurthyDotCom
Conclusion
©MurthyDotCom
It is now more important than ever before to discuss possible options with a
qualified immigration attorney either before filing the I-485, or after the filing
if there are changes in employment or marital status. We at The Law Office
of Sheela Murthy will continue to observe trends in processing times and
make them available to our readers on MurthyDotCom.
 
Vsc

Courtesy of "www.visalaw.com"

The Vermont Service Center has announced that it will be permanently closing its public window as of September 1, 2004. Thus, it will no longer conduct business on a walk-up basis.

Q: Is it doing any other business at all?
 
Ice

Courtesy of "www.ilw.com"

Melting ICE

Why is ICE, the enforcement arm of the DHS, subject to greater criticism than other federal agencies merely for trying to do its job? Delegated with the responsibility of tracking down an estimated 10 million undocumented with a tiny staff, ICE has adopted a targeted enforcement approach concentrating on finding the 80,000 criminal aliens and the 320,000 aliens who fled after being ordered deported. This leaves the remaining 95% of the undocumented population against whom ICE acts only occasionally such as in the Wal-Mart case. The issue of interior enforcement and undocumented immigration is an emotionally charged issue for people on both sides of the immigration debate. ICE's uncomfortable situation is due in part also because of Congress's mixed messages. On the one hand, Congress realizes that the undocumented problem is one Congress created and until its corrects its mistake through a massive legalization program, it is Congress's policy to deliberately permit the undocumented to stay through informal pressure on ICE whenever ICE strays from the targeted enforcement approach. This explains the low morale of ICE employees who feel that they are being asked to deport people today who Congress will grant green cards to tomorrow. Such is the price our nation pays for an immigration law which does not recognize the reality of globalization, large-scale cross-border movement, and the immense economic benefit accruing to the US as a result of immigration.
 
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