DHS / US CIS Issues

Compete America

http://www.competeamerica.org/news/media_coverage/index.html

A coalition that includes businesses and trade associations on Wednesday asked
Congress to reform the H-1B visa program, arguing that foreign nationals who have
earned masters and doctorate degrees from U.S. universities should be exempt from the
program's annual cap. In February, the government said it had received enough
applications to reach this fiscal year's cap of 65,000 visas, which allow skilled workers to
remain in the country for up to six years. According to the Compete America coalition,
the reform is vital for American employers to remain competitive. The group said that in
the physical sciences and engineering, nearly 50 percent of all masters and doctorate
degrees awarded by U.S. schools are earned by foreign nationals.

Critics of the H-1B program
argue that highly educated
U.S. workers are available
for jobs and that the visas
fuel the shift of technology
work offshore. Already,
there are some exemptions
to the cap.
 
Last edited by a moderator:
NAFSA

NAFSA: Association of International Educators
FOR IMMEDIATE RELEASE
CONTACT: Ursula Oaks, 202.737.3699 ext. 253; ursulao@nafsa.org

FOCUS ON U.S. VISA POLICY SHARPENS AS CONCERN ABOUT
ACCESS FOR FOREIGN STUDENTS AND SCHOLARS PERSISTS

NAFSA proposal identifies problems, sets out recommendations for
balanced policy

WASHINGTON, April 29, 2004 - NAFSA: Association of International
Educators today issued a comprehensive road map for a U.S. visa policy
that articulates the national interest in both protecting the nation
against those who would do harm and ensuring its openness to the
scientific and educational exchanges on which the future of U.S.
international leadership and security depends. "This document is the
result of extensive consultations with administration officials," said
NAFSA Executive Director and CEO Marlene Johnson. "We share their goal
of implementing a visa policy that enhances our national security by
better focusing scarce resources and addressing fundamental problem
areas in visa processing.

The increasingly negative - albeit unintentional - impact of current visa
policy on international scientific and educational exchanges has captured
the attention of officials at the highest levels of the U.S. government.
Cabinet members, consular officials, White House advisors, and others
recognize that the United States must take decisive steps to prevent
further damage to the country's position as the academic destination of
choice for the world's future leaders and best minds.

A February 2004 survey by NAFSA and four other higher education
associations identified the alarming extent to which international
students are apparently voting with their feet by not submitting
applications to U.S. higher education institutions for this fall. That survey
found that the problem is particularly acute at the nation's doctoral and
research institutions, and among the 25 research institutions that enroll
the most international students. In recent months, attention has focused
on the prospect of an impending "reverse brain drain," in which the
United States could lose increasing numbers of gifted foreign scientists
to more welcoming countries. Meanwhile, officials in Australia, Canada,
and the United Kingdom have openly expressed their belief that their
recruitment efforts to woo the most talented internationally mobile
students and scholars have benefited from the growing perception of an
unwelcoming climate in the United States.

NAFSA's policy proposal, "A National-Interest-Based Visa Policy for
Students and Scholars," identifies and sets out recommendations to
address four major problem areas in the current U.S. visa system: the
absence of an overarching visa policy to guide visa decision-making; an
unfocused approach to reviews that results in repetitive processing of
routine cases and takes resources away from cases that require more
scrutiny; a need for clear time guidelines to prevent visa applications
from being indefinitely lost in the review process; and a lack of balance
between resources and responsibilities for those charged with carrying
out visa policy.

"A National-Interest-Based Visa Policy for Students and Scholars"
Introduction and Summary
Visa Policy Recommendations

____

With 9,000 members, NAFSA: Association of International Educators is
the world's largest nonprofit association dedicated to international
education.
 
CSC / issues / Class

Courtesy of "www.immigration-law.com"

05/14/2004: California Service Center Concurrent Adjudication Pilot Initiation and Warning Against Abuse

We reported earlier that the California Service Center was launching I-140/I-485 concurrent adjudication pilot program for the concurrent I-140/I-485 filing cases inasmuch as it is non-National
Interest Waiver case and filed after certain date. Qualified cases were supposed to be adjudicated in less than 90 days.
Apparently, CSC is concerned at this time that those who have already filed concurrent I-140/I-485 cases or I-140 petition alone may withdraw the pending cases to refile a concurrent I-140/I-485
case to take advantage of the pilot program.
AILA reports that CSC will not take such withdrawn-refiling cases qualified for the pilot program and will not adjudicate such cases concurrently. It appears, though, that such decision may raise a
legal question of arbitraniness in administration of adjudication function. It may also raise the issue of "equal" protection and fairness. The agency may create a "class" without permissible legal
justification or constitutional basis just as seen in the "Francis" decision. We'll see.
 
RFEs

Courtesy of "www.cyrusmehta.com"

May 14 2004
USCIS CLARIFIES ITS POLICY ON ISSUANCE OF RFEs

by
Olivia Thuma*

The United States Citizenship and Immigration Services (USCIS) has recently
issued two memoranda, authored by William Yates, Associate Director for
Operations, which provide guidance on issuance of Requests for Evidence
(RFEs). The first Yates Memo of April 23, 20041 addresses the significance of a
prior approval of a nonimmigrant petition in the context of a subsequent
determination regarding eligibility for extension of petition validity.2 The second
Yates Memo of May 4, 20043 states that an RFE is not required for every case
prior to adjudication and clarifies when adjudicating officers may deny an
application or petition without issuing an RFE.

1. The Yates Memo of April 23, 2004

Adjudicating officers are not bound to approve subsequent petitions merely
because of a prior approval, which may have been issued erroneously.4
However, recent USCIS practices reveal that adjudicators have frequently
exceeded their authority when questioning prior determinations that were
readily approved. The Yates Memo of April 23, 2004 sets forth a general policy
against re-adjudicating previously approved petitions when there is no material
change in the underlying facts, to avoid issuance of unjustified RFEs or denials.

More specifically, the memo states that in extension cases involving the same
parties and the same underlying facts, a prior determination made by an
adjudicating officer regarding the eligibility of the beneficiary of a petition for the
classification should be given deference. However, notwithstanding the fact of a
prior approval, the adjudicator may request additional evidence or deny the
petition on three grounds:

1) There was a material error with regard to the previous petition
approval;

2) A substantial change in circumstances has taken place; or

3) There is new material information that adversely impacts the
petitioner’s or beneficiary’s eligibility.


A material error is a misapplication of the pertinent law or regulation to the
facts of the case. An example of a material error is an H-1B petition approval
where the beneficiary’s degree is not appropriate for the occupation. The memo
specifically points out that adjudicating officers should not question subjective
determinations made by prior adjudicators, including an evaluation of the
beneficiary’s education, specialized training, and progressively responsible
experience in a degree equivalency determination.

A substantial change in circumstances is a material change to either the
petitioner’s or the beneficiary’s eligibility for the given classification. For example,
in L extension cases, the adjudicator needs to make a new determination of
eligibility for the given classification if a change in the corporate relationship
occurs, or a change in the nature of the beneficiary’s employment takes place,
including a change in job duties, a change from a specialized knowledge to a
managerial or executive position, or a change in the organizational structure of
the petitioning company. Similarly, in H extension cases, where the instant
specialty occupation requires licensure, the adjudicator needs to review whether
the beneficiary obtained a permanent license or continues to hold a temporary
license in the state of intended employment.

New material information includes any fact not available to the previous
adjudicating officer that adversely impacts the petitioner’s or beneficiary’s
eligibility for the classification sought. This could be information affecting national
security or public safety obtained from security checks.

It is hoped that this memo will prevent re-adjudication of petitions already
approved where there is no material change in the underlying facts, and as a
result, eliminate issuance of unnecessary RFEs or unjustified denials, which have
been causing significant time delays in processing extension petitions.

2. The Yates Memo of May 4, 2004

On the other hand, the Yates Memo of May 4, 2004 re-affirms that an RFE is not
required for every case prior to adjudication. The memo clarifies that
adjudicating officers may deny an application or petition without issuing an RFE if
there is evidence of clear ineligibility5 or the record is complete.6

Clear ineligibility exists when an applicant or petitioner does not meet a basic
statutory or regulatory requirement. This may include circumstances where the
applicant or petitioner fails to establish that they are eligible to file for the
requested benefit, or they clearly fail to meet a substantive requirement needed
to establish eligibility for the benefit sought. The memo gives several examples
of clear ineligibility, including: a petitioner seeking to file a Form I-130 who is not
a qualifying relative; a petitioner in an L case who does not have the required
relationship to a foreign company abroad; an E-1 treaty trader or E-2 treaty
investor who is not a national of a country with a qualifying treaty with the
United States; or a beneficiary, whose education documents clearly establish
that he/she does not have the required degree or equivalency for H-1B status.

If the record is complete with respect to all initial evidence specified in the
regulations, on the application/petition, and accompanying instructions, the
adjudicating officer is not required to issue an RFE to obtain further
documentation to support a decision based on that record. The adjudicator may
issue a denial if the applicant or petitioner has not met his or her burden to
establish eligibility for the benefit sought. The memo gives an example of the
I-140 immigrant petition, where the petitioner is required to submit initial
evidence specified in the regulations such as copies of annual reports, federal
tax returns, or audited financial statements, to establish its ability to pay the
beneficiary the proffered wage.7 If the petitioner submits one of these required
documents, and the adjudicator determines that the submitted document fails to
establish its financial ability, he/she may deny the petition without issuing an
RFE. Similarly, the memo could also apply more drastically to an L-1A petition in
which the petitioner submits all the required evidence, including proof that the
beneficiary will be employed in a managerial position.8 The adjudicator may still
deny the petition without issuance of an RFE, if he/she determines that the
evidence fails to establish the managerial nature of the job duties.

The Yates Memo of May 4, 2004 also notes that the USCIS is only required to
issue an RFE when initial evidence is missing.9 In all other instances, when the
evidence raises issues regarding eligibility or does not fully establish eligibility,
issuance of an RFE is discretionary. The memo specifically states that the
adjudicating officers may deny cases when they determine that the applicant or
petitioner has not met his/her burden to establish eligibility for the benefit
sought, rather than exercise discretion and issue and RFE prior to final
adjudication. The American Immigration Law Association (AILA) raised concerns
about the memo, which instructs adjudicating officers to issue decisions rather
than RFEs in many instances. Bill Yates, Associate Director of Operations at
USCIS is currently addressing these concerns.10

It is hoped that USCIS adjudicators will carefully consider all submitted evidence
before they deny a petition without issuing an RFE. If the case is denied, the
applicant or petitioner is left only with the option to file an appeal or a motion to
reopen/reconsider, which is a time-consuming process and which also does not
guarantee that the initial denial decision would be reversed.



*Olivia Thuma is a Law Clerk at Cyrus D. Mehta & Associates, PLLC. She
graduated with a Master of Laws degree from Columbia Law School in 2003,
where she was a Human Rights Fellow. She also received a Master of Law
degree from the Jagiellonian University Faculty of Law and Administration
(Poland) in 2001. She was a recipient of scholarships from Columbia Law
School, Boston College, SOROS, OSI, and the Ministry of Education of the
Republic of Poland. This article was written under the supervision of Cyrus D.
Mehta, Esq. Further inquiries to the firm can be made at (212) 425-0555 or
info@cyrusmehta.com.

1 Memorandum from William Yates, Associate Director for Operations, HQOPRD
72/11.3 (April 23, 2004).

2 This memo does not apply to E-2 treaty investor and L-1 “new office”
extension petitions.

3 Memorandum from William Yates, Associate Director for Operations (May 4,
2004).

4 Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988).

5 8 CFR §103.2(b)(8).

6 8 CFR §103.2(b)(1).

7 8 CFR §204.5.

8 8 CFR §214.2(l)(3)(ii).

9 8 CFR §103.2(b)(8).

10 RFE Memo Clarification Sought, posted on AILA InfoNet at Doc. No. 04051462
(May 14, 2004).
 
RFEs

Courtesy of "www.murthy.com"

USCIS to Clarify Memo on Avoiding RFEs and Issuing Denials
Posted May 14, 2004

We recently obtained information that the USCIS plans to issue a revision
or clarification of a Memo authored by William R. Yates, the USCIS
Associate Director for Operations, requiring USCIS examiners to issue a
decision without a Request for Evidence (RFE) under certain
circumstances. Regular readers will recall our May 7, 2004 article, USCIS
Memo: More Denials, Fewer RFEs, available on MurthyDotCom, in
which we reported on a USCIS Memo issued May 4, 2004, regarding
potential case denials without the issuance of an RFE. The Memo was
addressed at a recent American Immigration Lawyers Association (AILA)
conference on May 7, 2004, where Attorney Sheela Murthy was both a
moderator and a speaker. It was reported that the Chair of the AILA Liaison
for the USCIS Immigration Services Division (ISD) has discussed concerns
about the Memo directly with Mr. Yates relating to the confusion it may
cause for USCIS examiners as to when RFEs should be issued. Mr. Yates
has agreed to issue a clarification to the USCIS Service Centers regarding
the limited applicability of the Memo.
 
Readjudications

Courtesy of "www.murthy.com"

Readjudications Restricted for Extensions
Posted May 14, 2004

William R. Yates, the USCIS Associate Director for Operations, issued a
Memo on readjudications on April 23, 2004. It guides USCIS examiners not
to deny or challenge a previously approved petition or application,
especially in those cases where there are no material changes that would
impact the extension petition or application.

The USCIS has previously made it clear that each petition must qualify in
its own right and must be fully documented. The Memo clarifies the proper
role of the USCIS examiner in situations involving previously approved
cases. Essentially, the Memo reestablishes that the USCIS has the
authority to question prior determinations, but sets policy limits on when
this questioning should occur. It is particularly addressed to situations
without material changes in the underlying facts of the case.

Readjudication is a word used to describe the situation in an immigration
matter where the prior approval of a petition or application is not granted
deference and a subsequent examiner substitutes his or her judgment for
the decision of the prior USCIS examiner. This arises in a variety of
situations including, for example, the filing of requests for H1B extensions.
There are times when a petition for an H1B is approved, and then a later
petition for extension of the H1B status, based upon the same job, same
employer, and other similar or identical facts, is denied for a reason such
as the position not qualifying as a "specialty" occupation even though the
law has not changed in the interim.

New Policy – Overview

The USCIS does have the power to question its own prior decisions, and is
not bound to a factual or legal determination simply because a previous
examiner made a particular decision in the past. The USCIS must decide
each case on its own merits, and does not have to rely upon any prior
decisions, as they could have been wrong or erroneous. However, the
Yates Memo clarifies that USCIS examiners should not routinely question
earlier decisions and readjudicate cases if there is no material change in
the underlying facts.

Policy Applies Primarily for Extensions

The Memo makes it clear that prior decisions should be given deference
when the same petitioner and beneficiary file an extension of status request
and there has been no change in the facts of the case. This deference
should not be given if the examiner determines that there was a material
error in the prior approval. It is also not applicable if there has been a
substantial change in circumstances or the examiner is aware of new
information that negatively reflects upon the eligibility for the benefit sought.
If the examiner denies a petition in this instance, s/he must articulate the
material error, changed circumstances, or new information that formed the
basis of the subsequent denial. Thus, inconsistent decisions must be
explained in writing.

Certain Extensions Can Be Denied

The Memo does not apply to certain types of cases where an approval is
issued for the purpose of allowing an individual to carry out a business plan
prospectively. These types of cases include L-1s for new offices and treaty
investors. These individuals are given a limited period in which to establish
businesses and meet regulatory criteria for any extensions. They must
reach the stated or expected goals within the allotted time or their
extension status will be denied.

Extensions of Status Not Required if Status Not Maintained

The Memo does not limit an examiner's ability to deny a request for an
extension of status contained in the petition filing. It only addresses the
extension of the validity of the petition. If the individual beneficiary is not
eligible for an extension of status within the U.S. due to failure to maintain
status or any other relevant factor, then the petition itself can be approved,
but not the extension of the individual's status. In that event, there will not
be an I-94 at the bottom of the approval notice and the individual will be
directed to leave the United States and apply for a visa at the consulate or
reenter the U.S. from foreign travel to return to legal status.

Fraud / Misrepresentation is Always a Reason to Deny or Revoke

The Memo similarly does not impact the ability by the USCIS to revoke a
petition for fraud or misrepresentation. This happens commonly when an
individual applies for a visa at the consulate and the consulate determines
that the individual's credentials are not genuine or that there have been
other types of misrepresentation in the matter.

Review by Deputy Center Director

In a case where an examiner believes an extension of a petition or
application should be denied, based upon a material error, substantial
change in circumstance, or new material information, a review must be
made by the Deputy Center Director before either a Request for Evidence
(RFE) or a final decision can be issued.

We at The Law Office of Sheela Murthy, P.C. are pleased with this USCIS
Memo. This change is positive, both in terms of potentially expediting case
reviews and providing for reliability and uniformity regarding previously
approved cases. Employers and applicants need to be able to depend upon
obtaining extensions and necessary services of their nonimmigrant
employees or an immigration benefit previously granted. Most make the
reasonable assumption that a case that was approved once will be
approved again, barring materials changes in the facts or the law. If the
Memo is implemented, thanks to the efforts of various attorneys, it will also
help the USCIS with its backlog reduction plan, since time and energy will
not be expended in dealing with denials of cases subject to the Memo.
 
RFEs / Readjudications / Yates

Courtesy of "www.shusterman.com"

8. USCIS: Streamlining Operations at the Service Centers?

Over the past few years, we have seen hundreds of persons adversely affected by the decision of a Service Center officer to readjudicate a previously approved petition.

For example, consider the fellow whose employer submitted both a labor certification and a national interest waiver (NIW) for him in 1999. When the INS approved the NIW,
the employer simply withdrew the labor certification since it had become an unnecessary exercise. However, the fellow continued to work on his H-1B status until his six years
expired and then his EAD while he waited for the Service Center to finally get around to approving his application for adjustment of status. A few months ago, rather than
approve his adjustment application, the Immigration Service revoked his NIW (after all these years!) on the ground that it should never have been approved under the standards
of their own 1998 decision in Matter of New York State Department of Transportation.

Readjudicating previously approved petitions eliminates an immigrant's ability to rely on any decision of the Immigration Service since the next officer who looks at an approved
petition can simply decide that the first officer's decision was erroneous and revoke the petition, at a time when it is too late for the immigrant to recover from this change of
mind/heart. If things worked this way in the criminal courts, I'm sure OJ would be sweating profusely as he tees up on the back nine at Rancho.

Now, an April 23, 2004 policy memorandum by William Yates, the Associate Director for Operations for USCIS attempts to halt the practice of "routine" questioning of prior
Service determinations. The Yates memo provides that prior adjudications should be given deference on extensions and readjudication will only be allowed with specific
authorization from the Deputy Center Director where there was a material error, a substantial change in circumstances, or there is new material information which adversely
impacts eligibility for a benefit.

The complete text of this memo is available at

http://shusterman.com/pdf/yates42304.pdf

Then, on May 4, 2004, Mr. Yates addressed another significant problem which has been slowing down Service Center operations and giving immigrants and their attorneys grey
hair during the past few years: RFEs.

For those readers fortunate enough never to have experienced one, the term RFE is short for Request for Evidence. These days, it seems like every second or third petition or
application submitted to a Service Center is returned with an RFE. All too often, the material requested is either unnecessary to adjudicate the application or has already been
included with the petition.

Not only are RFEs being issued with increasing frequency, like snowflakes on a winter's day in Vermont, but they are growing longer and more onerous. We received a
ten-paged RFE the other day.

Yates' memo sets standards for the issuance of an RFE. It also instructs adjudicators to cease sending RFEs in cases of clear ineligibility. Where the record is considered
complete, issuance of an RFE is said to be discretionary, and the adjudicator may deny without an RFE.

While we sincerely hope that the Yates memo solves the RFE problem, we are a bit apprehensive. Beware of what you wish for, your wish may be granted in a way that you did
not expect! What if the elimination of these odd and assorted RFEs results in thousands of denials instead? One can only hope for the best.

Mr. Yates' memo on RFEs may be accessed at

http://shusterman.com/pdf/yates50404.pdf
 
Fingerprints

Courtesy of "www.immigration-law.com"

05/07/2004: New 485 Filing and Processing Agenda

USCIS has yet to announce the backlog reduction agenda which they scheduled in May or June 2004. However, USCIS Service Center sources gave us a glimpse of the direction towards which
the USCIS were heading. According to the sourcs, USCIS implemented a nine-month delay in fingerprint scheduling this year to alleviate the problem of fingerprints expiring prior to adjudication
of the case. Reportedly, however, the Service Centers have been recently directed by the USCIS HQ to schedule fingerprinting upon receiving of I-485 applications, even though there is an
anticipation that some of those cases may still experience some delays due to the backlogs at the Application Support Centers. This fingerprint agenda change is implemented with a targeted
485 processing time reduction to the period of validity of fingerprint (Fingerprint is valid for 15 months) by early next fiscal year. Fiscal Year starts on October 1, 2004. Additionally, by the end of
this year, the USCIS will have installed a system which will capture and store the fingerprints, allowing the agency to obtain new pringer print results without 485 applicants being reprinted.
Accordingly, in the near future, refingerprinting may be totally eliminated. Such change will allow the agency to reduce I-485 to 6 months by the end of FY 2006 (September 30, 2006).
All in all, the six-month I-485 processing times is at quite distance away, but we may, hopefully, see some level of processing time reduction within the year. Let's cross our fingers.


NOTE: By early next year, US CIS will implement a system for capturing and storing fingerprints!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
 
Re-adjudication / RFEs / Yates memos

Courtesy of "www.shusterman.com"

8. USCIS: Streamlining Operations at the Service Centers?

Over the past few years, we have seen hundreds of persons adversely affected by the decision of a Service Center officer to readjudicate a previously approved petition.

For example, consider the fellow whose employer submitted both a labor certification and a national interest waiver (NIW) for him in 1999. When the INS approved the NIW, the employer simply withdrew the labor certification since it had become an unnecessary exercise. However, the fellow continued to work on his H-1B status until his six years expired and then his EAD while he waited for the Service Center to finally get around to approving his application for adjustment of status. A few months ago, rather than
approve his adjustment application, the Immigration Service revoked his NIW (after all these years!) on the ground that it should never have been approved under the standards of their own 1998 decision in Matter of New York State Department of Transportation.

Readjudicating previously approved petitions eliminates an immigrant's ability to rely on any decision of the Immigration Service since the next officer who looks at an approved petition can simply decide that the first officer's decision was erroneous and revoke the petition, at a time when it is too late for the immigrant to recover from this change of mind/heart. If things worked this way in the criminal courts, I'm sure OJ would be sweating profusely as he tees up on the back nine at Rancho.

Now, an April 23, 2004 policy memorandum by William Yates, the Associate Director for Operations for USCIS attempts to halt the practice of "routine" questioning of prior Service determinations. The Yates memo provides that prior adjudications should be given deference on extensions and readjudication will only be allowed with specific authorization from the Deputy Center Director where there was a material error, a substantial change in circumstances, or there is new material information which adversely impacts eligibility for a benefit.

The complete text of this memo is available at

http://shusterman.com/pdf/yates42304.pdf

Then, on May 4, 2004, Mr. Yates addressed another significant problem which has been slowing down Service Center operations and giving immigrants and their attorneys grey hair during the past few years: RFEs.

For those readers fortunate enough never to have experienced one, the term RFE is short for Request for Evidence. These days, it seems like every second or third petition or application submitted to a Service Center is returned with an RFE. All too often, the material requested is either unnecessary to adjudicate the application or has already been included with the petition.

Not only are RFEs being issued with increasing frequency, like snowflakes on a winter's day in Vermont, but they are growing longer and more onerous. We received a ten-paged RFE the other day.

Yates' memo sets standards for the issuance of an RFE. It also instructs adjudicators to cease sending RFEs in cases of clear ineligibility. Where the record is considered complete, issuance of an RFE is said to be discretionary, and the adjudicator may deny without an RFE.

While we sincerely hope that the Yates memo solves the RFE problem, we are a bit apprehensive. Beware of what you wish for, your wish may be granted in a way that you did not expect! What if the elimination of these odd and assorted RFEs results in thousands of denials instead? One can only hope for the best.

Mr. Yates' memo on RFEs may be accessed at

http://shusterman.com/pdf/yates50404.pdf
 
BAcklog Reduction Plan

Courtesy of "www.immigration-law.com"

05/07/2004: New 485 Filing and Processing Agenda

USCIS has yet to announce the backlog reduction agenda which they scheduled in May or June 2004. However, USCIS Service Center sources gave us a glimpse of the direction towards which
the USCIS were heading. According to the sourcs, USCIS implemented a nine-month delay in fingerprint scheduling this year to alleviate the problem of fingerprints expiring prior to adjudication
of the case. Reportedly, however, the Service Centers have been recently directed by the USCIS HQ to schedule fingerprinting upon receiving of I-485 applications, even though there is an
anticipation that some of those cases may still experience some delays due to the backlogs at the Application Support Centers. This fingerprint agenda change is implemented with a targeted
485 processing time reduction to the period of validity of fingerprint (Fingerprint is valid for 15 months) by early next fiscal year. Fiscal Year starts on October 1, 2004. Additionally, by the end of
this year, the USCIS will have installed a system which will capture and store the fingerprints, allowing the agency to obtain new pringer print results without 485 applicants being reprinted.
Accordingly, in the near future, refingerprinting may be totally eliminated. Such change will allow the agency to reduce I-485 to 6 months by the end of FY 2006 (September 30, 2006).
All in all, the six-month I-485 processing times is at quite distance away, but we may, hopefully, see some level of processing time reduction within the year. Let's cross our fingers.
 
Edison said:
2 months for GC, really Cool!!!!!!
Click to expand...

If the new proposal for Democratic party's immigration reform ever gets
passed, anyone who lives here for more than 5 years and pays taxes for
two years will get their GC immediately. cooler!!!!!!

but a proposal is a proposal. a promise is a promise. don't forget
that politicians are not just liars. they are well trained professional liars!!!
let's see what they will do. since the economy is getting better
hope they will have incentives to process GC.
 
Uscis

Courtesy of "www.maggio-kattar.com"

CIS Issues Three Significant Policy Memoranda

CIS has instructed its adjudicators that they may deny certain cases outright rather than send
the petitioner a Request for Evidence (RFE). This change, according to the CIS, is “part of
its backlog reduction initiative.” A policy memorandum to the field also advises that an RFE
is not necessary when there is clear evidence of ineligibility and the record is complete. On
the other hand, if the record is not complete, current regulations require the CIS to issue an
RFE. This is another example of the often-nonsensical ironies of immigration law and
policy. If you fail to comply with the law by filing an incomplete application, you do get a
second bite at the apple. But if you comply with the law, and you do not do so as well as
you should, your case will be denied outright. For example, an employer is required to file
specific types of evidence to establish its ability to pay the beneficiary the wage offered.
This may include copies of annual reports, federal tax returns, or audited financial
statements. If the employer submits its tax returns and the CIS examiner concludes that a
loss indicates an inability to pay the prevailing wage, despite acceptable income reducing
accounting practices such as carrying losses forward, the immigrant visa petition can be
denied outright, without an RFE. On the other hand, if the employer submits the employee’s
W-2 form or another form of evidence not specified in the regulations, the CIS will give the
employer an opportunity to present additional evidence whenever that evidence is deemed
insufficient. This “backlog reduction initiative” surely will increase the number of CIS
denials. It will also increase the number of motions to reopen and motions to reconsider
CIS decisions. But will it in any way reduce the growing backlog at the CIS? We doubt it.



Another recent memorandum from CIS headquarters advises that an I-140
employment-based immigrant visa petition and an I-485 adjustment of status application
filed concurrently will be adjudicated concurrently. Furthermore, for purposes of measuring
and reporting local processing times for these forms, the local I-140 processing times will
control. A concurrently filed I-485 will no longer be tracked based upon the local 485
processing time. This new reporting system is less confusing and more accurate, but it in no
way addresses the astonishing amount of time CIS requires to process applications for
permanent resident status.



In a third recent policy memo to the field, CIS headquarters advises that “in matters relating
to an extension of nonimmigrant petition validity involving the same parties (petitioner and
beneficiary) and the same underlying facts, a prior determination by an adjudicator that the
alien is eligible for the particular nonimmigrant classification should be given deference.” This
overdue policy announcement is in response to complaints that quite frequently the CIS has
been issuing RFEs and in other instances denying extensions of H-1B, L-1, and O-1 status
to foreign nationals who have been granted that status previously, and in some instances,
who have previously been granted extensions in that status. This memo states that the CIS
should only question prior determinations where there was material error with regard to the
approval of their previous petition or there has been a substantial change in circumstances.
Although this memo’s author has said that its purpose is to correct the overzealous review of
previously approved petitions, it can be read to give CIS adjudicators license to question
past approvals more frequently, and such a reading certainly is consistent with the pervasive
“culture of no” at the CIS.
 
Backlog reduction plan

Courtesy of "Murthy chat". Thanks Murthy for letting us know!! (as if we did not know before!)


Chat User : Good evening, Murthy. With the new I-140/I-485 procedure as
of April 30th, what does this mean for pending CP I-140 cases?

Attorney Murthy : No one knows for sure, as we have written in our
MurthyBulletin article, since it is too early to tell. We hope that it does not
mean putting existing cases on the slow track, but that seems to be the
plan. We had a meeting on Friday, May 7th, 2004 with a senior USCIS
official in Washington, D.C. where I was speaking on labor certifications
with the Chief of the U.S. Department of Labor for the U.S. The USCIS
official mentioned that the game plan is to catch up and bring along all
newly filed cases so that they are processed within the 180-day timeframe
and then slowly go back to playing catch-up with the previously filed cases.
That is their backlog reduction plan.
 
New Ead

The new EAD is very secure according to USCIS. May or may not be beyond one year! USCIS always likes to have it both ways. Enjoy the NEW EAD coming soon at a theatre near you!

Press Office
U.S. Department of Homeland Security
May 20, 2004
Press Release
USCIS INTRODUCES NEW EMPLOYMENT AUTHORIZATION DOCUMENT WITH
ENHANCED SECURITY FEATURES
WASHINGTON, D.C. – U.S. Citizenship and Immigration Services (USCIS) will soon begin issuing a new
version of the Employment Authorization Document (EAD) or Form I-766. The EAD serves as proof to
employers that an individual is authorized to work in the United States. The new card is designed with
numerous security features to prevent counterfeiting and fraud. The card includes a magnetic strip, a two-dimensional barcode, and several features that can be used in forensic examination to determine the card’s authenticity.
“USCIS is continuously looking for new ways to enhance national security to maintain the integrity of the
immigration system,” said Eduardo Aguirre, Director of USCIS. “Including these new security features into
one of the most widely used immigration document allows USCIS to make sure the right applicant receives
our country’s benefits.”
The new EAD eliminates all references to the former Immigration and Naturalization Service (INS) and
includes only markings that identify it as a Department of Homeland Security (DHS) and USCIS document.
On March 1, 2003 USCIS became one of the three former INS components to join DHS. USCIS is charged
with fundamentally transforming and improving the delivery of immigration and citizenship services.
An EAD is normally valid for up to one year, although there are some cases in which a longer validity period
is authorized. An EAD is typically produced and mailed within three days after an individual’s application
for benefits is processed and approved. The current production rate of the EAD is about 24,000 per week.
USCIS expects to issue the new cards in early June 2004.
 
Ilw

ILW Highlights
Frustration At USCIS Service Centers

Many of today's frustrations in immigration law practice are with issues connected with USCIS Service Center benefits processing. ILW.COM's new seminar series "Grant Me This Much: Obtaining Immigration Benefits From The USCIS Regional Service Centers" will provide immigration attorneys with the tools necessary to alleviate at least some of these frustrations. The speakers are a mix of government officials and distinguished immigration practioners.

The deadline to register is Tuesday, May 25th. For more info, including detailed curriculum, speaker bios, and registration information, see: http://www.ilw.com/lawyers/seminars/may2004.shtm. (Fax version: http://www.ilw.com/lawyers/seminars/may2004.pdf.)



--------------------------------------------------------------------------------
 
Ombudsman

Ombudsman's Office Ready to Handle Complaints About Immigration Services

As part of the reorganization that created the Department of Homeland Security (DHS) and the
USCIS, Congress also created the Citizenship and Immigration Services Ombudsman to assist
individuals and employers in resolving problems with the USCIS. To ensure the Ombudsman's
independence, Congress provided that the head of the office would report directly to the Deputy
Secretary for DHS, and not the Director of the USCIS. Mr. Prakash Khatri, an immigration lawyer
and naturalized citizen, assumed the position of Ombudsman in July 2003.
The Ombudsman is responsible for identifying problems and proposing changes in administrative
practices relating to immigration services. Every June 30, the Ombudsman must also produce a
report to Congress that will provide analysis, statistical information, a detailing of pervasive prob-lems,
recommendations for improving services, and actions taken to correct problems. Addition-ally,
the Ombudsman is to develop guidance for all officers and employees of USCIS that outlines
the criteria for referrals to the Ombudsman, including telephone numbers that the office must pub-lish
and make available to individuals and employers.
During the first few months after his office opened, the Ombudsman visited several USCIS districts
to evaluate processes and operations. He also met with members of Congress, USCIS employees,
representatives of CBOs, other non-profit organizations, and the American Immigration Lawyers
Association. Additionally, the Office has received comments by e-mail and letters. In the coming
months, the Ombudsman plans to continue to meet with individuals and employers who are having
problems with USCIS by participating in meetings and organizing "Town Halls" across the country.
Based on these meetings, the Ombudsman has documented and analyzed problems that individuals
and employers are having in dealing with the USCIS, and is recommending major changes to a
number of key programs that affect large numbers of applicants. The Ombudsman expects that the
proposed changes will dramatically reduce the current processing time for adjustment of status and
the renewal and replacement of permanent resident cards. USCIS is currently developing pilot
programs based on the recommendations.
The Ombudsman's Office does not currently have sufficient funding to establish local offices or
fully staff a national phone number. As it stands, you may forward concerns to the central
Ombudsman's Office at CISO@DHS.gov or Department of Homeland Security, Office of the CIS
Ombudsman, Washington, DC 20528. The NALEO Educational Fund will continue to advocate
for additional resources to assist the Office in operationg effectively.
iiiiiii
This Naturalization Bulletin was made possible in part by a grant from the Carnegie Corpora-tion
of New York. The statements made and views expressed are solely the responsibility of the
author, the NALEO Educational Fund
 
Nafsa, Dos

Courtesy of "www.immigration-law.com"

05/31/2004: Maura Harty, Asst. Secretary of State, Defends Against Ongoing Attack of Visa Backlog Problem

Research and academic community in this country is currently fully charged and getting growingly impatient over their sufferings from the visa backlogs and the State Department's faults in creating backlogs. On May 27, 2004, Maura Hary, Assistant Secretary of State came forward to defend herself and her Department against the attacks at the Annual Conference of NAFSA, Baltimore, Maryland. We would like to give an equal opportunity to the State Department to tell its side of story. We just wish that she had answered to the so-called Six Improvement Proposals and its future plan for improvement. Here are her statements (1) and (2).
 
Last edited by a moderator:
Link (1)

MAURA HARTY
ASSISTANT SECRETARY OF STATE FOR CONSULAR AFFAIRS
REMARKS TO THE 56TH ANNUAL CONFERENCE OF
NAFSA: ASSOCIATION OF INTERNATIONAL EDUCATORS
LUNCHEON
BALTIMORE, MARYLAND
MAY 27, 2004


I am very happy to be here today and to have this opportunity to speak to you about the efforts that the State Department, and
particularly the Bureau of Consular Affairs, are making to balance the needs of national security, legitimate travel and immigration:
the policy that Secretary Powell often refers to as a balance between “Secure Borders and Open Doors.”

I believe it is more important than ever that responsible citizens become familiar with what their government is doing to ensure
their safety and security in the war on terrorism. We need to work together. I am here today to assure you that although security
must always be our first priority, we are committed to minimizing the impact of new procedures on legitimate travelers.

The two primary responsibilities of every Consular officer are assistance to American citizens abroad and protection of our
borders. Both of these very broad mandates have become even more important in the post-9/11 world.

The very visible function of adjudicating visa applications of foreign nationals seeking admission to the United States is our topic of
interest today. But I would be remiss if I didn’t say a brief word about the other things we do.

Consular Officers deal with issues that people really care about: citizenship, birth, death, marriage, adoption, illness, arrest,
disputes with authorities, disasters, travel, voting and child custody. We also adjudicate some seven million passport applications
annually for U.S. citizens who travel abroad. We make decisions and take actions that often form key turning points in people’s
lives. We know that the visa function is a part of that equation. As Consular Officers overseas in over 200 embassies and
consulates, we push the very borders of the United States out far beyond our nation’s physical limits to try and spot questionable
or dangerous travelers well before they reach our borders.

Since the horrific attacks of September 11, we have introduced unprecedented changes to the visa process. Our efforts have been
and will continue to be under close scrutiny by Congress and the general public.

In my plenary speech I tried to outline some of those process changes we’ve made. I also hope that I established how committed
we are to what I believe are common goals.

Since those attacks of September 11, we in the Department of State have received a number of letters from representatives of
U.S. higher education about visa issues. We have also seen newspaper articles and editorials, and a recent NAFSA press
release. The common theme in these letters and media items is criticism of our visa process. This criticism worries me because I
think it reflects some misunderstandings that may result in misdirected energies.

I will be the first to admit that many applicants for student visas experienced unacceptable delays and difficulties during the
summer of 2002. I suppose that is easy for me to acknowledge, since I had not yet started in this job at that point, but the fact is
that summer 2002 was the first summer student-visa season since 9/11, and by that time, we had made some changes,
particularly in Washington-based interagency review of certain applications, that resulted in long delays and missed classes for
many students. The implementation of these changes was rocky at first – and it took some time to make improvements.

When I began this job in November 2002, the biggest scream factor in my inbox related to visa screening delays. We worked
extremely hard at improving our technology, our communications, and our processes, in order to make visa screening both
thorough and efficient. By summer 2003, I think that most of you who work closely with foreign students must have seen that
things were better (and I expect that you will see further improvements this summer).

I have to admit some level of frustration as I have seen that anecdotes about horrendous visa delays not only seem to drown out
the true story – that tens of thousands of students got their visas in time; they also seem to diminish very little with the passage
of time. Frequently, when I hear about a visa problem, and I bore in on the specifics, I find that the complainant has few or no
recent examples to cite, but only old, often second-hand, anecdotes. My remedy? To keep striving for ever greater efficiencies
and to talk to as many audiences such as yours as I possibly can.

We do have what we all consider a serious problem, in that new applications from foreign students to study in the U.S. are down.
The reasons for that are complex and I do not believe are solely visa-related. In fact the drop in student visa applications since
9/11 is about 22 percent worldwide, compared to a 31 percent drop in other types of visa applications. Tourist travel has declined
more than student travel. All of these numbers are a source of concern. But let me give you good figures in case you weren’t at
the earlier talk. Last year we adjudicated just over seven million non-immigrant visas. Of that group of people, some 2.2 percent
required a special Washington, DC-based name check. Last year that process averaged two months. Today, 80 percent of these
clearances are completed within three weeks – and we’re working hard on the remaining 20 percent of that 2.2% who require
special checks.

I am sure that many foreign prospective students have worries about the visa process, driven by the same kind of anecdotes that
we have all heard. That is why I think it is very important to fully describe the situation.

Let me offer an example. A May 25 article in the Stanford Report is headlined “Stanford’s International Students Share Tales of
Visa Hell.” The article opens with the story of a visa applicant who applied on May 13 and may miss a May 31 scientific meeting
in the U.S., due to a visa processing delay. Do I wish he had applied earlier and given us a bit more time? Of course I do. But we
read that story and issued the visa yesterday. Going back for a moment to the Stanford article, a Stanford official says that “more
than 90 percent of Stanford’s international students are granted visas without delay” and “of about 900 new international graduate
students admitted each fall, five at most suffer outright visa denial”.

I hope that you as members of NAFSA will acknowledge that there is in fact a lot of improvement in what we are doing in visa
processing. I was in India last week, visiting three of our major visa-adjudicating posts. I felt that I needed to kick the tires myself,
so I could come here and speak honestly, and with recent field perspective. On my first day there, Ambassador David Mulford had
published an op-ed piece in the New Delhi newspaper, the Economic Times. I have copies for any of you who might be interested.
Ambassador Mulford and I talked at length about our mutual desire to encourage Indian prospective students. He forwarded the
op-ed to 50 presidents of American universities – including some of your institutions. He made the point, in a cover letter to those
university presidents, that while we in the U.S. government are doing everything we can to demonstrate our desire to welcome and
facilitate their legitimate travel to the U.S., we can not do it all. Higher education is an internationally competitive field. As one
small example, the British have put up a billboard saying “Study in the U.K.” right in front of our Consulate General in Chennai,
India. I spoke to a group of 200 Indian students there, and visited the American International School of Chennai, whose students
are all college-bound. Their interest in the U.S. was unmistakable. But if all they hear is that the U.S. visa process is broken, they
may decide to try another country instead. And that, for our nation, is a serious loss.

I’m not at all trying to stifle criticism. In fact, I use the anecdotes I hear as indicators so I can know where we might still have
systemic challenges that I need to address.

I would like to ask your help. When you are interacting with foreign students, please consider pointing out that our approval rate
for student visas has not gone down, and our laws on qualifying for a visa have not changed. It is true that we have instituted a
number of procedural changes. These changes are, in essence, designed to get to know the applicant better, before we let him or
her into the country. It’s like making sure you know the person before you invite them into your home. We know that the vast
majority of applicants are well-intentioned, legitimate travelers, and the additional information we are collecting will help us to verify
that. We hope that the few persons who might pose a security threat will be deterred or detected in this process. We have an
almost sacred duty to contribute to our nation’s safety and well-being. But when we make it safer for Americans, we make it safer
for everyone here. ....................................
 
Link (2)

MAURA HARTY
ASSISTANT SECRETARY OF STATE FOR CONSULAR AFFAIRS
REMARKS TO THE 56TH ANNUAL CONFERENCE OF
NAFSA: ASSOCIATION OF INTERNATIONAL EDUCATORS
PLENARY SESSION
BALTIMORE, MARYLAND
MAY 27, 2004

I am very happy to be here today and to have this opportunity to speak to you about the efforts that the State Department, and
particularly the Bureau of Consular Affairs, are making to balance the needs of national security, legitimate travel and immigration:
the policy that Secretary Powell often refers to as a balance between “Secure Borders and Open Doors.”

I believe it is more important than ever that responsible citizens become familiar with what their government is doing to ensure
their safety and security in the war on terrorism. We need to work together. I am here today to assure you that although security
must always be our first priority, we are committed to minimizing the impact of new procedures on legitimate travelers.

The two primary responsibilities of every Consular Officer are assistance to American citizens abroad and protection of our
borders. Both of these very broad mandates have become even more important in the post-9/11 world.

The very visible function of adjudicating visa applications of foreign nationals seeking admission to the United States is our topic of
interest today. But I would be remiss if I didn’t say a brief word about the other things we do.

Consular officers deal with issues that people really care about: citizenship, birth, death, marriage, adoption, illness, arrest,
disputes with authorities, disasters, travel, voting and child custody. We also adjudicate some seven million passport applications
annually for U.S. citizens who travel abroad. We make decisions and take actions that often form key turning points in people’s
lives. We know that the visa function is a part of that equation.

Since September 11, we have introduced unprecedented changes to the visa process. Our efforts have been and will continue to
be under close scrutiny by Congress and the general public.

We have greatly increased the level of data-sharing between the State Department and the law enforcement and intelligence
communities; made available visa information to Department of Homeland Security (DHS) officers at all ports of entry; tightened
interview requirements; enhanced training for Consular Officers in interviewing techniques; and, joined in the creation of the
Terrorist Screening Center to provide a more systematic approach to posting lookouts on potential and known terrorists. We have
introduced more than 60 standard operating procedures for Consular Officers abroad so that they know what we expect and so
that I can be certain we are all reading from the same page.

We will continue to work with other agencies of the U.S. government on procedures that are transparent and predictable
specifically so that legitimate travel will be facilitated. We share your goals of enriching our country by continuing to welcome
people of good intent. It is that very diversity that has made our nation strong.

America’s superb academic institutions are among our largest exporters of complex, high-value services, to say nothing of the
good will they engender. As Secretary Powell said recently, “the essential embracing sprit of America’s attitude toward people is
our greatest asset. We must work together to ensure that our country remains a beacon for students, international tourists,
immigrants and business people."

As more travelers visit our shores, they contribute to our nation in ways uncounted. Our travel and tourism sector is an 88 billion
dollar industry. One out of every eight civilian adults employed in this country is employed directly or indirectly in the travel and
tourism industry. We have a 12 billion dollar student industry, and while that bottom line is important, we should think about the
long term national security implications of attracting or failing to attract foreign students to our shores.

If a foreign student goes elsewhere, we don't just lose that student but his parents, who probably influenced the decision and will
likely pay for the academic experience. We lose their younger siblings, who will probably follow in their older brothers’ and sisters’
footsteps or at least study on the same continent. Then, when these young people become civic or business, political, or even
religious leaders in their own country and they decide to have foreign experiences, they will likely go back to what they know
best.

For generations of foreign leaders that country has been the United States, and we have benefited exponentially from that
influence, in the political, social, scientific, economic and commercial fields.

This year, we've issued the first 25 Fulbright scholarships to Iraqi students. They are now in some of our best universities. They're
studying law, they're studying business, they're involving themselves in public health education, in journalism, public
administration, education and environmental science, picking up the skills they need to go back and help to rebuild their country.
They are, of course, having a quintessentially American experience.

Other Fulbrighters just like them have risen to the challenge of leadership during their countries historic transitions to democracy.
Fulbright scholars stood at the forefront of Poland’s first post-communist government. Poland’s foreign minister is a Fulbrighter. A
Fulbrighter helped to lead East Timor’s struggle for independence. President Toledo of Peru is also a former Fulbrighter. More
than 200 of the State Department’s international visitors program participants have become heads of state or government. Among
those leaders: Prime Minister Tony Blair of the United Kingdom, President Megawati of Indonesia, President Saakashvili, the new
President of Georgia and most of the members of his cabinet, and President Konare, the former President of Mali and now the
chairman of the African Union Commission. It is likely that tomorrow’s leaders are among the 30,000 men and women who
participate each year in our State Department exchange programs.

We hope that the next generation of leaders from the Arab and Muslim world will be found among the students selected for our
partnerships for learning initiative. Partnerships for Learning is an outreach effort that we put in place in the wake of 9/11. Under
this initiative, 160 young people from predominantly Islamic countries are now studying at American high schools and living in
American homes, and over 70 undergraduates from the Middle East countries are studying at American universities.

We know from experience that the personal and professional relationships that are developed during such exchanges form a
foundation of understanding and lasting partnerships, not just between young people, but between nations, between societies,
and between cultures.

But none of these benefits are possible if we can’t get people to come here in the first place. We need to regain travelers’
confidence that they will be safe and most of all welcome. To do that we need people in other countries, as well as their sponsors
here, to know what we have done to refine our security procedures to make travel to America accessible and desirable.

The Department of State is working closely with the Department of Homeland Security and other government agencies to make
our promise of Open Doors a reality.

To facilitate student and exchange visitor applicants, I instructed our visa-adjudicating embassies and consulates both this
summer and last summer to provide expedited interviews for students. Depending on the facilities at each post, our Consular
sections provide special appointment times for students, special interview windows specifically for students or put students at the
front of interview lines. We don’t want students missing class because they can’t get an appointment in a timely fashion.

The personal appearance requirement for virtually all visa applicants fulfills a congressional mandate to collect biometric identifiers
from applicants by October 26, 2004. We need to see people to comply with the law. Consular Officers abroad at 143
visa-adjudicating posts are currently collecting two digitally scanned fingerprints from non-immigrant visa applicants. By October
26 of this year, all visa adjudicating U.S. embassies and consulates will be collecting such information. This is a quick, inkless,
and non-intrusive procedure.

While there have been notable changes to the way in which visas are processed, the eligibility requirements to be issued a U.S.
visa have not changed. U.S. immigration law requires a nonimmigrant visa applicant to demonstrate among other things, that he
or she does not intend to stay in the United States, and has not been involved in criminal or terrorist activities to be issued a visa.
That has not changed..............................................CONTINUED
 
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