DHS / US CIS Issues

Link (2) CONTINUED

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The sad reality is that bad news travels the globe ten times before good news gets up for breakfast. So let me share some good
news here. I am happy to report that we have made tremendous progress in making the screening process more efficient over the
last 18 months. Let me run some numbers for you, which I know some of you have heard before. 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 know there are true stories of
people whose clearances have taken much longer. I regret them. We will not rest until this system is as efficient as it can
possibly be. We are also engaged in a “lessons learned” exercise even as I speak. We are looking at which changes make sense
and which have perhaps been less useful to us. The goal is to try to facilitate international travel.

In that vein, we recently increased to one year the validity of the clearances granted to certain groups, of scientists and scholars,
who participate in joint-research programs. Travelers who need to make repeated visits within a given year may now do so without
our Consular Officers having to go back to Washington for an additional name check if they are in these categories.

We are committed to improving the visa process to encourage and facilitate travel by legitimate students and exchange visitors. I
would be remiss, however, if I did not make another important point. Clearly, we all have to do a better job of attracting the world’s
rising generation to come study in America in the first place. There are many factors at work affecting decisions to study in the
U.S. as a result of a more competitive, globalized world. The international market for students is much more competitive than it
used to be. Our top drawer, best-in-show academic institutions have a product that may not necessarily be selling itself as easily
as in the past. If the current trend away from studying in the U.S. is not reversed, we will lose a precious commodity.

For our own well being as a country, and because we have so much to give, we must keep our doors open to the world. We must
facilitate legitimate travel while striking the delicate balance between Secure Borders and Open Doors of which I have spoken
today.

We are on the same side in this debate. I welcome your continuing contribution and appreciate the productive relationship we
have enjoyed over the years. We must continue to work together. I do not think it overstates the case to say that our national
security in part depends on our success.
 
Electronic filings! / Backlog reduction plan

Courtesy of "www.immigration-law.com"

05/31/2004: Online Filing of Immigration Benefits Application/Petition and Question of Benefits

We commend the USCIS for expansion of the online filing program. Without doubt, it is expected to reduce the man/hours and workloads of the field offices and help in better management of information/data on the immigration consumers. We also agree that it will present a substantial convenience to the consumers. The USCIS deserves a Hat's Off for the good work.
However, this website has repeatedly emphasized the importance of reduction of the backend backlog and wants to see its launch of the backend reduction plan in parallel with such front-end workload reduction. From the perspectives of the consumers, a front-end electronic filing alone may not result in substantial benefits in terms of the processing times, for a number of reasons. First, the past experience of electronic filing of I-765 (EAD) and I-90 (Green Card Replacement) reflects that once the applications were filed electronically, those cases were processed and adjudicated in the field offices in the same queue with the paper filings. As a consequence of such practice and policy, electronic filing sometimes turned out to be
more a burden than a benefit because the consumers had to take two-step of filings: Initial electronic filing of the forms, followed by filing of supporting documentation by mail. In certain proceedings that required biometric identifiers, the consumers had to appear in fingerprint centers (ASC) after driving a long distance. Second, I-140 electronic filing also involves some concerns to the consumers. According to the internal memorandum of the USCIS, the benefit of concurrent adjudication of I-140/I-485 filings will be, at least initially, limited to the concurrently filed I-140 petitions. Considering the fact that the concurrent adjudication program will be advantageous over to separate adjudications of I-140 and I-485, unless the USCIS assures the consumers that I-140 electronic filing will receive the same benefits of I-140/I-485 concurrent filing cases, people may be reluctant to file I-140 electronically, unless they are forced to file I-140 alone because of the physical presence of the alien beneficiaries abroad or ineligibility of the alien for I-485 application filing within the U.S. or alien's decision to go for the consular processing. Indeed, these aliens may receive some benefits from the electronic filing of I-140 petitions.
We do realize the difficulty of the USCIS in processing the electronically filed cases ahead of other paper-filed cases in terms of the fairness of the legal proceedings. It is thus obvious that for the electrical filing to be effective, the USCIS should push hard reengineering of the procedures and systems of processing and adjudication of cases in the backend. We understand that the USCIS may announce its backlog reduction plan in June 2004. We hope to see in the plan some creative proposals to reduce the backend process as we see in the Pilot Concurrent Adjudication Programs in California Service Center and Dallas District Office and expected issuance of EAD of over one year in validity.
 
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I-485 approvals

Courtesy of "www.murthy.com"

I-485 Processing Times Vary
Posted May 28, 2004

Regular MurthyDotCom and MurthyBulletin readers are aware that, as of
April 30, 2004, the USCIS Service Centers changed the manner in which
they process concurrently filed I-140/I-485 cases. Essentially, in an effort to
increase efficiency, the I-140 petition and the I-485 application will be
adjudicated concurrently if filed concurrently. Previously, the two forms
were adjudicated at the Service Centers on separate tracks, at separate
times, by different examiners or adjudicators. More information on this new
procedure is available in our April 23, 2004 MurthyBulletin article, New
Procedures for Concurrently Filed I-140/I-485 Cases, available on
MurthyDotCom.

Recent Approvals at Our Law Firm

We at The Law Office of Sheela Murthy, P.C. have been closely watching
the approvals and transfers in our I-485 cases to discern any pattern or
change as a result of the new adjudication procedures. At this early stage,
less than a month after the changes were put into place, we can see that
something is happening, but hesitate to confirm that it is an established
pattern. The dates of the I-485 approvals have become far more random and
irregular than we previously experienced. Readers should be mindful that
we are reporting about only a handful of cases, and that the ultimate
outcome of the new procedures is still to be seen. These examples are not
meant to show reliable processing times. It is unlikely that the National
Customer Service Center (NCSC) will use anything other than the USCIS
reported processing times, to determine whether questions about the
status of a case should be forwarded to someone beyond the frontline
responder at the NCSC.

Below, we outline the updates on the USCIS Service Centers in
alphabetical order:

California Service Center

The California Service Center (CSC) is part of both the new processing
procedures and a pilot program designed to speed adjudications. See our
April 9, 2002 article, CSC Pilot Program on Concurrent Adjudications,
available on MurthyDotCom. We received an approval last week for a case
that was filed almost a year after the posted CSC processing dates. While
the CSC reports a current processing date for employment-based I-485s of
March 1, 2002, the approval we received in mid-May 2004 was for a case
that was filed in February 2003.

Nebraska Service Center

The most recent case approval we received from the Nebraska Service
Center was directly on target with their posted processing dates. The case
was approved on May 14, 2004 and had been filed in December 2001.

Texas Service Center

We have not seen any approvals from the Texas Service Center (TSC) that
seem to be out of the ordinary order. The action we are seeing on TSC
I-485 cases, however, follows a long period of almost total stagnation.
Recently we received a few Requests for Evidence (RFEs), which indicate
that the cases are being reviewed. The most recent approval we received
was dated May 3, 2004 for a case filed March 1, 2002. This is about two
months ahead of the published processing times of January 1, 2002.

Vermont Service Center

Our Vermont Service Center (VSC) cases are showing an impressive
movement. The most recent approval was issued on May 18, 2004, for a
case filed just one year earlier, on May 25, 2003. This is a significant
variance from the published times, which in recent months have reflected a
processing time of about 18 months. The published processing date when
this case was approved was February 15, 2002. Of course, there are I-485
cases that we filed before that date that remain yet been approved or even
scheduled for an interview at the local USCIS District Office.

In addition, several cases were transferred for interview at the local office
well in advance of the anticipated processing dates. The transfers coincided
with the I-140 approvals. In those cases, the I-485s were only filed quite
recently; about 6-8 months ago. The I-140s were filed a bit before the I-485s
in these cases.

Plan for Faster I-485 Approvals

These changes may indicate that, in the near future, we will notice faster
I-140/I-485 processing times. This is something that would be enormously
beneficial to many. What appears to be happening is that some cases are
being processed much more quickly than the published processing times,
while other cases are taking longer than the published processing times.

Marriage and Faster I-485 Approvals

These recent developments are important to anyone planning important life
events, such as a marriage or a job change, around the slow green card
processing times. With respect to marriage, in order to have one's spouse
included as a derivative beneficiary in an employment-based green card
case, the marriage must occur before the I-485 is approved. In the past,
people often planned weddings around the official processing timeframes
provided by the USCIS. Now, with the processing times being so uncertain,
wedding dates may need to be moved up to avoid serious delays or
problems in bringing the new spouse to the U.S. on dependent status.

Job Changes and Faster I-485 Approvals

Additionally, people often try to plan job changes and the use of AC21
portability around the processing times. They want to attempt changing
jobs after they become AC21 eligible, but before the I-485 is approved. This
option may become far less certain. If processing times improve
considerably, AC21 may not be available under law and may even become
unnecessary in most cases.

We will continue to monitor the progress of our I-485 cases at The Law
Office of Sheela Murthy and will report any interesting developments. On
the one hand, it is good news that cases may be processed faster in the
future. On the other hand, some people may find it frustrating that they have
waited so many years while others are getting their cases approved more
quickly. We understand that there will be a transition period for this new
system, but we expect that efforts will be made at USCIS to work toward
processing cases in the order of filing.
 
Liaison meeting

Courtesy of "www.shusterman.com" - CSC - AILA Liaison meeting.

American Immigration Lawyers Association
California Service Center
May Liaison Meeting
GENERAL QUESTIONS
1. Members report that RFEs often request documentation that has already been submitted with the initial
evidence ( e.g. a credentials evaluation report). Is there any supervisory review of an officer's decision to send
out an RFE? If not, what type of quality control mechanisms are used to assure that officers do not request
evidence that has already been submitted as initial evidence?
Yes, we have a review and a quality assurance process in place at the CSC. In many cases, we are
asking for evidence because the initial submission does not satisfy the requirements of the regulation.
2. Members report that they sometimes receive both the client's and the attorney's copies of the fingerprint
notice. Sometimes the client receives both. Applicants who are frequent business travelers may not be home to
receive the notice and reschedule the appointment in a timely fashion.
What is the best way to assure that the applicant and the attorney receive their respective copies?
The notices are sent to whatever address has been provided. If the attorney address has been listed in
the applicant block on the/orm and/or the 0-28, the attorney would receive both copies.
To permit lawyers and clients to monitor this issue, can information about whether and when a
fingerprint notice has been issued be posted on the CIS online status report?
You are encouraged to pose this question to HQ.
3. What is the best way to request rescheduling of fingerprint appointments if the client cannot attend? Is
there a limit to how many times a client can request rescheduling? Is there a limit to how many times a client can
miss a fingerprint appointment before a case is denied?
It is suggested that the applicant do everything possible to keep the assigned appointment. If your client
misses hislher appointment he will go to the end of the line and further delay the adjudication of his/her
1-485. An adjudicator has no way of distinguishing between a "missed" or "rescheduled" appointment.
Therefore, a rescheduled appointment may appear as missed --after two missed appointments an
application will generally be denied.
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Concurrent processing

Courtesy of "www.immigration-law.com"

06/02/2004: Concurrent Adjudication (I-140 + I-485) Guidance of USCIS HQ

As we reported earlier, on March 31, 2004, the USCIS issued a memorandum to the Service Centers to adjudicate concurrently for the concurrently filed I-140 and I-485. Accordingly, people may assume that since about May 1, 2004, the Service Centers have been processing concurrently filed I-140/I-485 cases separately and differently from the I-485 cases which were filed alone. Following are the guidance for concurrent adjudication of concurrently filed I-140+I-485 cases under the memorandum:
In the Service Center processing times reports, the concurrently filed I-485 processing time coincides with the I-140 processing time. In other words, for these filers, they should keep track of I-140 processing time and not I-485 processing time in the bi-weekly official processing time reports of the Service Centers. For them, I-485 processing time is the same as I-140 processing time. Meanwhile, those who filed I-485 separately should keep track of I-485 processing times in the bi-weekly reports.
For the concurrent adjudication filers, I-140 petition and I-485 application always stay together. This will result in two consequences: First, since I-140 is not adjudicated separately, the previous procedure of prima facie review of I-140 eligibility is more or less removed and discouraged. Second, in order for the I-485 adjudication to be completed in the same pace with the I-140 adjucation, the Service Centers will accelerate the name check and fingerprint job vigorously.
Actual adjudication of I-140+I-485 will not take place until I-485 application is ready to be adjudicated after completing the name check and fingerprint. Therefore, the concurrent adjudication files remain on the shelf until they are ready to be adjudicated together. When it reaches actual adjudication process, the adjudicators are required to review both I-140 petition and I-485 application. In other word, if the adjudicator needs to issue RFE for I-140, the adjudicator should also determine whether another RFE should be issued for I-485, should there be the RFE issues in the I-485 application. If the petitioner (employer) fails to respond to I-140 RFE or to meet the eligibility requirement, the adjudicator will deny both I-140 and I-485. On the other hand, should the I-140 petitioner be successful in responding to the I-140 RFE and satisfies eligibility requirements, the adjudicator should approve the I-140 petition no matter whether I-485 applicant has successfully responded to the I-485 RFE. If the I-485 applicant fails to meet the RFE equirement, such I-485 will be denied, and more likely the petitioner will receive the I-140 approval notice and the alien will receive I-485 denial notice.
Plus side and Minus side of Concurrent Filing and Concurrent Adjudication: The big plus will be the processing times. If we look at the I-140 processing times, even though each Service Center differs, the average I-140 processing time is approximately one (1) year. It means that in the concurrent adjudication cases, people will get green card approval within one year or less. Then what is minus? What else, AC 21 180-day rule of change of employer. Since the alien can not change employment until after the I-140 petition is approved, those who lose the job will face a potential denial of the green card opportunity.
 
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I-140 / I-485

Courtesy of "www.cyrusmehta.com"

une 7 2004
PROCEDURAL AND POLICY CHANGES FOR I-140 PETITIONS

by
Romulo E. Guevara*

In an on-going campaign for backlog reduction, the U.S. Citizenship and
Immigration Services (USCIS) has issued two memoranda directing procedural
changes and policy clarifications on employment-based petitions, known as a
Form I-140 petition.

A previous article (USCIS CLARIFIES ITS POLICIES ON RFEs) addressed two
memos issued by William Yates, Associate Director of Operation, on the
significance of prior approvals in extension contexts, and procedural guidance
with regard to Requests for Evidence (RFE).

This article will focus on the two recent memoranda on I-140s discussing (1) the
adjudication of concurrently filed Form I-140 Immigrant Petition for Alien Worker1
and Form I-485 Application for Adjustment of Status, and (2) the determination
of financial ability to pay under 8 C.F.R. Section 204.5(g)(2) when an employer
files the Form I-140 petition.2

1. USCIS Finally Moves Towards Concurrent Adjudication of I-140/I-485s

As background, on July 31, 2002, legacy Immigration and Naturalization Service
(INS) promulgated an Interim Final Rule allowing Form I-485, Application to
Register Permanent Residency or Adjust Status, to be concurrently filed with
Form I-140, Immigrant Petition for Alien Worker. Until the promulgation of this
interim rule, Form I-485 could not be filed simultaneously with Form I-140. The
Form I-140 had to be approved before Form I-485 could be filed. The Interim
Rule allowed the simultaneous filing of Form I-140 and Form I-485 under the
employment-based first, second and third preferences. If Form I-140 was filed
before July 31, 2002, Form I-485 could be filed with a copy of Form I-797, Notice
of Action, establishing prior receipt and acceptance of Form I-140 petition.

The advantage of the Interim Rule centered on the instant availability of all
adjustment of status benefits, such as obtaining employment authorization and
advanced parole, at the time of filing Form I-140. The Interim Rule also allowed
eligible family members, such as the spouse and minor children, to file Form
I-485 applications provided each applicant had a visa number currently available
and each applicant maintained lawful nonimmigrant status. In the event that
lawful nonimmigrant status was not maintained, applicants could potentially
seek protection under Sections 245(i) or 245(k), which are provisions that permit
those who have violated status to file for adjustment of status under specific
circumstances.

The emergence of concurrent filing was, in this writer’s opinion, an incomplete
benefit. Once processing of Form I-140 was complete and an Approval Notice
was issued, applicants had to endure the extensive backlogs of Form I-485
processing. As of this writing, the four USCIS Service Centers process Form
I-485 in approximately two years from receipt, regardless of the approval of a
concurrently filed Form I-140.

The Ohata Memo of March 31, 2004

Fujie Ohata, Director of Service Center Operations, issued a memorandum on
March 31, 2004 outlining procedural instructions for concurrent adjudication of
concurrently filed Form I-140 and Form I-485s. The memorandum directs the
Service Centers to use I-140 processing times as the tracking mechanism for
concurrently filed Form I-485, rather than the local I-485 processing times.
Therefore, the USCIS will now consider concurrently filed Forms I-140 and I-485
a separate workload from stand-alone Forms I-485.

Beneficiaries of concurrent employment-based filings will greatly benefit from this
change in adjudication procedure. The memorandum suggests that I-140
processing dates will be controlling, which is a more favorable measure. With
the exception of certain categories in the Vermont Service Center,3 all the
service centers process Form I-140 in approximately two to seven months.
Subsequently, when an I-140 approval is issued, the memorandum requires the
immediate adjudication of the accompanying Form I-485. However, concurrent
adjudication of Form I-485 will take place only if security clearances have been
issued (fingerprints and name checks have cleared).

In the event that a Request for Evidence (RFE) must be issued in the I-140 case,
the memorandum states that the adjudicator should also review the I-485 filing
to determine if it requires additional evidence as well. Because of potential legal
conflicts, I-140 and I-485 will have separate RFEs issued, rather than combining
the RFE into one document. Each RFE will be mailed separately. If Form G-28 is in
the file, both RFEs will be sent together to the attorney or accredited
representative of record. The memorandum makes clear that if the I-485
applicant submits a timely response, but the petitioner does not, both Form
I-140 and I-485 will be denied. Likewise, if the petitioner files a timely response,
but the applicant does not, Form I-140 will be adjudicated on the merits, while
Form I-485 will be denied for failure to respond to an RFE. The Service Center
Directors have been given a thirty-day moratorium from the date of the
memorandum to make implementation procedures in each center.

The Ohata memorandum is a welcomed measure that was long overdue. The
concept of concurrent filing should have included the concurrent adjudication
procedures of the Ohata memorandum at the time the Interim Rule was
promulgated in July 2002. Hopefully, implementation of the memorandum will
spark greater speed in adjudication of adjustment of status applications in
concurrently filed cases and further reduce the overburdening backlogs at the
Service Centers.
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2. Fine-Tuning Form I-140 Financial Ability Determinations

A contributing factor to the current backlogs at the service centers has been the
unnecessary issuance of RFEs. One area that has been subjected to these
roadblocks has been the issue of whether a prospective U.S. employer has the
ability to pay the proffered wage in certain employment-based immigrant
petitions.

The relevant regulation states:

“(2) Ability of prospective employer to pay wage. Any petition filed by or for an
employment-based immigrant which requires an offer of employment must be
accompanied by evidence that the prospective United States employer has the
ability to pay the proffered wage. The petitioner must demonstrate this ability at
the time the priority date is established and continuing until the beneficiary
obtains lawful permanent residence. Evidence of this ability shall be either in the
form of copies of annual reports, federal tax returns, or audited financial
statements. In a case where the prospective United States employer employs
100 or more workers, the director may accept a statement from a financial officer
of the organization which establishes the prospective employer's ability to pay
the proffered wage. In appropriate cases, additional evidence, such as
profit/loss statements, bank account records, or personnel records, may be
submitted by the petitioner or requested by the Service.”4

In a memorandum by William Yates on May 4, 2004, policy guidance was issued
in anticipation of regulatory amendments to 8 C.F.R.§204.5(g)(2). A discussion of
the memo follows.

The Yates Memo on Financial Ability

The Financial Ability memo states that a petitioner must submit the regulatory
required evidence of annual reports, federal income tax returns, or audited
financial statements as initial evidence of financial ability. It also discusses the
circumstances where discretionary evidence may or may not be used.

Required Evidence. Adjudicators must first review the file for any missing initial
evidence. Upon review of any one of these items, adjudicators must issue an
RFE if any of these initial documents is missing from the record. Second,
adjudicators must review Form I-140 for completeness. A mandatory RFE must
be issued if Form I-140 is incomplete with regard to the date the petitioning
company was established, the current number of employees, and gross and net
annual income.

Consistent with the companion memo, Yates states that if the record is complete
with respect to all the required initial evidence, adjudicators are not required to
issue RFEs for additional evidence to support the financial ability decision on the
record and may deny the I-140 petition without an RFE.

After the required evidence of annual reports, federal income tax returns, or
audited financial statements is submitted with the I-140 petition, the memo
shows how a petitioner can have financial ability to pay the proffered wage
through three ways: First, if the net income is equal to or greater than the
proffered wage, there is financial ability. Second, if the net current assets are
equal to or greater than the proffered wage, financial ability exists. Finally, a
finding of financial ability can also be made by evidence of the employment of
the beneficiary by the petitioner at the proffered wage level. If any one of
these options are not met, the case can be denied.

Unfortunately, the memo disregards long accepted practices, which have
permitted a showing of financial ability using a combination of any of the three
options listed. For example, let’s assume the proffered wage in an I-140 skilled
worker case is $90,000 per year. The beneficiary received wages of $60,000 in
the year the priority date was established, with minor increases in subsequent
years leading to the RFE. Under the first option in the Yates memo, if the
petitioner’s net income was $20,000, the petitioner would not meet the financial
ability test because of a $10,000 defecit. Consequently, the case would be
denied. If the third option is used, financial ability test would also fail because
the beneficiary was paid less than the proffered wage. The second option is the
most limited in that it uses the net current assets analysis in a substantially
narrower way than accepted practices.

The Yates memo should have implemented principles established in the minutes
of the Eastern Service Center (ESC)/AILA Liaison Teleconference of November
16, 1994,5 where the then Director of the Vermont Service Center offered these
helpful observations:

“(1) If the taxable income on the petitioning company’s submitted tax return, for
the period covering the priority date for the I-140, is at least as high as the
wage offered, the ESC will generally assume that it can afford to pay the wage,

(2) If the taxable income is negative even though the beneficiary is not yet
employed by the petitioner, ESC will generally assume that the petitioner can
handle the additional salary if, according to its tax return, it has a favorable
enough ratio of total current assets to total current liabilities.

(3) In the case of a sole proprietorship, the ESC may consider the proprietor’s
personal assets and liabilities.

(4) It will look closely however at the argument that the hiring of the beneficiary
will turn an unprofitable company into one that can pay his or her salary.

(5) A positive retained-earnings figure does not guarantee the ability to meet a
larger payroll.

(6) Depreciation can generally be considered with taxable income in evaluating
the ability to pay the additional employee.

(7) Where the evidence is not self-explanatory, pertinent figures should be
highlighted and guidance offered on how the documentation establishes the
ability to pay.” (Emphasis added).

The Yates memo unnecessarily limits the financial ability examination to the
following equation:

Net Current Assets > Proffered Wage = Financial Ability.

Item two (2) above suggests that the ratio analysis can be used if there is
negative net income and the beneficiary is not yet employed by the petitioner.
The rationale is that a favorable ratio suggests the petitioner can handle an
additional salary even when there is a loss in the tax year.

However, this writer suggests that the Current Ratio Analysis could be used to
determine ability to pay, regardless of negative net income and employment of
the beneficiary. According to generally accepted accounting principles, the
Current Ratio and the Quick Ratio are basic measures for determining the
liquidity of a company. The Current Ratio is determined when dividing the current
assets with the current liabilities. The Current Ratio assumes (1) a regular cash
flow and (2) that both accounts receivable and inventory can be readily
converted into cash. A ratio of 2.0 is a common indicator of healthy financial
viability. When the Current Ratio falls lower than 1.0, it indicates a company’s
financial difficulties. Therefore, the Current Ratio Analysis is a more realistic
means to test financial ability than the net asset test described in the memo.

Similarly, depreciation should be added to net income, wages paid to the
beneficiary, and the ratio analysis. Depreciation by definition is not considered a
loss.

Discretionary evidence. The regulation states, “In a case where the prospective
United States employer employs 100 or more workers, the director may accept a
statement from a financial officer of the organization which establishes the
prospective employer’s ability to pay the proffered wage.”6 Subsequently, the
regulation lists discretionary evidence which may be asked for by the Service or
submitted by the petitioner in appropriate cases. By using the phrase, “in
appropriate cases,” the drafters intended for the financial ability regulation to
have different tiers.

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Taken as a whole, the regulation has three tiers: (1) Required evidence; (2)
Discretionary evidence for companies with 100 or more employees; and (3)
Discretionary evidence in general.

The memo interprets the regulation to permit the submission of additional
financial evidence in lieu of the initial required evidence where the petitioner
employs more than 100 employees (tying the second and third tiers). Additional
financial evidence has always been submitted to bolster either the required
evidence or for companies with 100 employees or more. But more disturbing is
the expansion of this requirement. Yates states, “regardless of the number of
employees the petitioner employs, CIS adjudicators are not required to accept,
request, or RFE for additional evidence. Acceptance of these documents by CIS
is discretionary.” The conclusion is: if the initial evidence submitted does not
establish petitioner’s financial ability to pay the proffered wage, adjudicators are
permitted to outright deny the petition.

The discretionary evidence refers to (1) profit/loss statements, (2) bank account
records, or (3) personnel records.7 The memo leaves the acceptance of this kind
of evidence to the adjudicator. If he or she decides to accept the discretionary
evidence, Yates states that the evidence must clearly establish petitioner’s
financial ability. He suggests that each piece of evidence must conclusively show
financial ability, rather than allow an adjudicator to make a pragmatic
assessment based on the totality of the circumstances.

An employment-based immigrant petition is, in essence, an offer of future
employment. The petitioner is not obligated to pay the proffered wage until the
beneficiary’s legal permanent residence is granted. Therefore, the employer
should be allowed to show financial ability from the date the priority date is
established to the grant of the beneficiary’s permanent residence status.8

Suppose an adjudicator chooses not to accept additional discretionary evidence
in a particular case. Petitioners have commonly demonstrated financial ability by
an examination of bank statements for each calendar year, beginning in the
year the priority date was established and continuing onwards. The average of
the ending bank balance in a twelve month period, added to the beneficiary’s
paid wages, and net income or net assets, ordinarily shows financial ability.
Petitioners have also used profit/loss statements and personnel records to
show available cash flow and ability to meet its payroll obligations. In today’s
economy, it is unrealistic to expect a single financial document to establish a
petitioner’s ability to pay without permitting a petitioner the opportunity to
provide additional evidence as the regulations allow. A totality of the
circumstances test should be used rather than the narrow single-document
analysis promulgated by the memo.

It is hoped that the backlog reduction initiatives are implemented in a way that
is not detrimental to petitioners and beneficiaries. The concurrent adjudications
memo by Ohata is a welcomed measure. But, the Yates memo, on the other
hand, offers too narrow a system for determining financial ability. The memo
should be reconsidered and broadened to reflect realistic ability to pay valuation
methods using the totality of the circumstances test. To do otherwise is to
sacrifice legitimate financially viable cases for the sake of backlog reduction.
 
Senate

Illegal Alien Amnesty is Top
Priority for Senate Leaders


June 15, 2004


Kennedy, Craig Promise Amnesty Amendment on Every Senate Bill

Senators Edward Kennedy (D-MA) and Larry Craig (R-ID) have vowed to
enact an amnesty program for millions of illegal aliens, even if it means
holding every other piece of Senate legislation hostage to accomplish it.
The two senior legislators have promised to attach their Agricultural Jobs,
Opportunity, Benefits and Security Act (AgJobs) to every Senate bill for
the remainder of the year. Their first target is the Defense Authorization bill
now being debated in the Senate.

The AgJobs bill would allow virtually every illegal alien who has worked in
agriculture in the U.S. to gain legal residence for themselves and their
families. Based on the language of the legislation, and past experience,
millions more people would likely gain legal residence fraudulently. Among
those who fraudulently gained amnesty under a similar agricultural worker
provision of a 1986 law were two Egyptian terrorists and New York City
taxicab drivers—Mahmud and Mohammed Abouhalima—who later
participated in the 1993 World Trade Center bombings.

"Of all the concerns of the American people—winning the war against
terrorism, affordable health care, improving education, soaring energy
costs—Senators Kennedy and Craig have decided that amnesty for
millions of immigration law breakers is the nation's top priority," said Dan
Stein, executive director of FAIR.

The 1986 agricultural amnesty provision, which legalized 1.3 million
people, was riddled with fraud. The current AgJobs legislation contains
even fewer safeguards against fraud and the threat of terrorism. News of
the all-out Kennedy-Craig amnesty push comes just days ahead of the
arrest yesterday of a Somali political asylum recipient charged with
conspiring to blow up an Ohio shopping mall. "Government authorities
couldn't weed a terrorist out of a much smaller number of asylum
applicants. What confidence would the American people have that they'll
be able to detect terrorists among millions of amnesty applicants?" Stein
questioned.

"It is shameful that while our nation is at war, and American soldiers are
dying every single day to defeat the terrorists who threaten our security,
that two senior members of the United States Senate would be willing to
hold up resources for them in order to gain amnesty for illegal aliens,"
Stein said. "While our young men and women are off fighting terrorism
around the world, Kennedy and Craig have pulled out all the stops to enact
legislation that will make it easy—and likely—that terrorists will be able to
gain legal residence in the U.S.

"Attaching an illegal alien amnesty to other important legislation is not
only unseemly and a threat to homeland security, it is ultimately a way for
Congress to do the bidding of special interests without ever having to
accept responsibility for their actions," Stein concluded.
 
Summary of documentary evidence.

The following show the problem and the rest:

1: http://www.gao.gov/new.items/ Timeliness of Applications, May, 2001. backlog problem, FP problem.
d01488.pdf

2: http://www.GAO.gov/ Fees, January 2004
d04309r

3: http://news.findlaw.com/hdocs/docs/...ism/hsa2002.pdf Homeland Security Act, Sections on Backlogs, Congressional Reports, Ombudsman

4: http://www.tcf.org/4L/4LMain.asp?Su...d=451&TopicId=5 The Century Foundation: DHS, one year progress report. "3.immigration.pdf"

5: CRS Report on Permanent Admissions. February 2004. Numbers not met.
http://fpc.state.gov/documents/organization/31352.pdf

6: http://www.ilw.com/lawyers/articles...9-paparelli.pdf Letter showing all the memos, regulations, guidances and all.

7: http://www.nilc.org/immlawpolicy/index.htm

Immigration Records and Databases INS data accuracy (8/27/03)(PDF)

Official Crime Information Should Be Accurate In her opinion editorial, published in The Miami Herald, April 28, 2003, NILC's policy attorney Joan Friedland discusses the Justice Department's information problem.

8: http://www.ilw.com/lawyers/immigdai...0615-eib108.pdf

Definitions for the EAD: temporary employment, restricted SSN, exclusion from the definition of a "US worker", which includes Asylees and Refugees...

9: http://www.ccfr.org/publications/im...on/summary.html June, 2004.

The Task Force urges the administration and Congress to work together in
finalizing and enacting backlog reduction plans, including adequate
appropriations and infrastructure, in order to meet a six-month processing
standard.
 
Uscis

Courtesy of "Murthy" : Thanks Murthy! Keep up the good work!

USCIS Update – June 2004

Direct Telephone Access with Service Centers
©MurthyDotCom
Considering the complaints USCIS has received about the customer service
line they established, it was explained that they are working toward
reconnecting callers directly with the various Service Centers. This
reassurance was provided by William Yates, the Associate Director of
Operations at the USCIS Headquarters in Washington, D.C. As many
MurthyDotCom and MurthyBulletin readers know, there is currently no
way to contact the USCIS Service Centers directly with questions about
pending cases. All calls must go through the National Customer Service
Center (NCSC). The plan, however, is to put contract workers in all
information officer positions, including those at the Service Centers. Thus,
callers will not be speaking directly to USCIS employees with experience in
adjudicating cases, as was possible before the change-over to the NCSC.
This modification should take place by the end of Fiscal Year (FY) 2004
(i.e. before September 30, 2004). There is also a plan to have better
telephone technology that will track telephone calls made by individuals to
the USCIS.
©MurthyDotCom
RFE Memo
©MurthyDotCom
AILA members questioned Mr. Yates about the potential ramifications of
his May 4, 2004 Memo regarding Requests for Evidence (RFEs) (Yates
RFE Memo). This Memo was discussed in our May 7, 2004
MurthyBulletin article, USCIS Memo: More Denials, Fewer RFEs,
available at MurthyDotCom. Mr. Yates indicated that, if a case can never be
cured of a defect, such as an I-130 petition filed by an uncle for a nephew or
a niece which is a non-qualifying relationship for I-130s, the case should be
denied without an RFE. However, if the case could potentially be cured of
the defect through a proper RFE response, supplying a missing birth
certificate, for example, the adjudicator should issue an RFE.
©MurthyDotCom
AILA members expressed their concerns that the adjudicators may not
interpret the Memo in the spirit that Mr. Yates may have intended. Mr.
Yates indicated that he will have town hall meetings with the adjudicators to
explain the intent of his Memo. If he sees an increase in denials and
subsequent Motions to Reopen for cases that were not issued RFEs or if
AILA members send in sufficient denials where an approval or RFE should
have been issued, he will consider revoking the Memo or issuing a
clarification.
©MurthyDotCom
Ability to Pay Memo
©MurthyDotCom
Mr. Yates was also asked to explain his May 4, 2004 Memo regarding the
Ability to Pay in I-140 cases (Yates Ability to Pay Memo), which was
described in our May 21, 2004 MurthyBulletin article, USCIS Memo on
Ability to Pay, also available at MurthyDotCom. Again, Mr. Yates stated
that he intended to make it easier, and not more difficult, to obtain an I-140
approval. Though the statute only requires evidence that a company is bona
fide, the regulations require evidence of ability to pay. Mr. Yates mentioned
that it is possible that the ability to pay regulations will be altered or
eliminated in the future since they are not required by the statute.
©MurthyDotCom
H1B Usage Only 16,100 through May 2004
©MurthyDotCom
The USCIS stated that, as of May 31, 2004, there were 16,100 H1B
cap-subject cases pending or adjudicated by the USCIS. Based on these
numbers, the USCIS does not anticipate that the FY2005 cap will be met
before the fiscal year begins on October 1, 2004, as was previously feared.
We caution readers not to become complacent, however, as there is no
guarantee there will not be an onslaught of filings at any time in the future.
The USCIS reminded AILA that its policy regarding cap cases is currently
to assign a cap number at the time that the USCIS receives the H1B
petition. Therefore, premium processing is not necessary solely to preserve
a cap number.
©MurthyDotCom
Diversity Lottery
©MurthyDotCom
The USCIS is recommending that anyone who won the diversity lottery this
year should file his or her I-485 application no later than July 15, 2004.
Otherwise, the USCIS cannot guarantee that expedited treatment will be
available to have the cases adjudicated by September 30, 2004, due to the
security checks that are needed. Diversity lottery winners should file as
soon as possible to ensure that the USCIS will have sufficient time to
adjudicate their cases prior to the conclusion of this fiscal year.
©MurthyDotCom
Receipt Notice Processing Times
©MurthyDotCom
The processing times on the receipt notices are frequently incorrect. The
USCIS acknowledges this issue and explained that it is a technological
glitch that they are not able to change in the near future. Therefore, the
USCIS recommends that all persons should follow the processing times
posted on the USCIS WebSite rather than follow the estimated processing
times on the receipt notices.
©MurthyDotCom
Future Developments
©MurthyDotCom
Mr. Yates intends to issue more clarifying AC21 memos over the summer
or soon thereafter. It is unclear whether these memos will be beneficial. On
a more positive note, the USCIS expects to publish an EAD regulation
within the next few weeks. We anticipate that this regulation will change
the EAD validity dates based on the approximate processing times at the
various Service Centers or USCIS District Offices, plus another two months.
The USCIS also plans to issue a favorable memo in the near future
regarding the F and J status gap that has occurred in many cases.
Although the USCIS was unwilling to make a firm commitment, a favorable
memo allowing Fs and Js to stay in the U.S. and obtain the H1B approval
with the I-94 card attached to the approval notice does appear likely.
 
Latest

Courtesy of "www.cyrusmehta.com"

June 19 2004
H-1B USAGE, END OF VISA REVALIDATION AND OTHER LATE BREAKING
DEVELOPMENTS IN IMMIGRATION LAW

by
Cyrus Mehta* & Romulo E. Guevara**

The American Immigration Lawyers Association (AILA) annual conference in
Philadelphia, PA, June 9-13, 2004, was a packed event with many presentations
on topical subjects and government speakers announcing important news. Here
are some important announcements that we heard at the conference.

I. H-1B Usage For Fiscal Year 2005

.......................................

II. State Department To End Visa Revalidations

....................................................
III. US Ombudsman Announces Pilot Programs For Speedy Marriage
Application Processing

During the luncheon for South Asian lawyers at the AILA conference, USCIS
Ombudsman, Prakash Khatri, announced pilot projects at various immigration
offices to speed up the process of marriage-based adjustment applications,
involving a joint Form I-130/I-485 filing. He indicated that one such program has
already been successfully implemented in Dallas and a similar program has
begun in New York. Although the backlog in New York is in excess of 40 months,
our office is beginning to see some cases filed in Spring 2004 being pulled out of
the queue and being issued interview dates within three months of the filing.

IV. EOIR To Start National Video Immigration Court

.................................................................
V. 60-Day Residency Requirement For I-130 Direct Filing in India

The USCIS office in New Delhi, India, has always accepted I-130 petitions by US
citizens who have married their spouse in India even though they were
temporarily present there. A direct filing of an I-130 facilitates quicker processing
than filing an I-130 petition with a service center in the US.

USCIS, India, recently announced that it will no longer accept such direct filings
unless the US citizen spouse can establish that he/she was in India for at least
60 days prior to the filing. The 60-day waiting period cuts off a relatively quick
processing facility for a US citizen to quickly bring his newly married spouse to
the US on a green card. Those who cannot wait 60 days in India will be forced to
file the I-130 petition at a service center, which takes over a year before the
spouse can obtain an immigrant visa to come to the US. Fortunately, on
December 21, 2000, the US Congress introduced K-3 visa. The K-3 visa allows
the spouse to enter on that visa more quickly while the I-130 petition is still
pending with a service center.

VI. USCIS Officials In Open Forum

AILA organized an open forum with officials of the USCIS that included Carlos
Iturregui, Chief, Office of Policy and Strategy; Fujie O. Ohata, Associate
Commissioner, Service Center Operations; Terry O’Reilly, Acting Director, Area
Operations; and William Yates, Associate Director, Operations. The following
issues were discussed:

a. Customer Service Hotline

The USCIS officials announced that they will open telephone lines back at the
Service Centers by the end of the fiscal year (September 30, 2004). The national
customer service line was established after the legacy Immigration and
Naturalization Service (INS) was reorganized into the Department of Homeland
Security in the Spring of 2003. As a result of the reorganization, all telephone
inquiries from the public were directed to a central number, 1-800-375-5283. In
practice, the new 800 number has been inefficient and not very helpful with
respect to a variety of immigration issues. The information officers repeat the
information that appears on the USCIS website, and callers are urged to write
to the relevant USCIS office adjudicating the case, from which a response is
seldom obtained. Prior to the reorganization of INS, a caller was able to speak
to an Immigration Officer directly at the Service Center where detailed
information could be obtained on the case in question. It is clear that the USCIS
has finally heard the public’s outcry for restoration of a more useful customer
service telephone system.

b. § 245(k)

USCIS officials also discussed Section 245(k) of the Immigration and Nationality
Act. This provision states that an employment-based adjustment applicant may
adjust status in the US notwithstanding his/her failure to maintain continuous
lawful status, if subsequent to a lawful admission, the violation did not occur for
an aggregate period exceeding 180 days. USCIS has confirmed that it will issue
policy guidelines that the 180 period runs only after the lawful re-entry of the
alien into the US. violations prior to that re-entry will not be counted in
determining the 180 period.

c. EADs

USCIS officials also announced the forthcoming publication of a rule that will
allow Employment Authorization Documents (EAD) to be valid for the duration of
processing dates at each district office or a service center. Therefore, if an
adjustment of status application takes 20 months to process at a local district
office, the rule will permit the issuance of an Employment Authorization
Document for 20 months. This rule stems from increasing delays from service
centers to process employment authorization documents. Many service centers
are taking up to six months out of the one-year maximum authorized time to
process an extension. Such delays often require an applicant to file an extension
almost as soon as he/ she obtains an EAD.

d. Info Pass

A new program called Info Pass has been implemented in some district offices.
Info Pass allows people to obtain an entry pass into a District Office by logging
into the USCIS website and request a Pass. USCIS officials announced that Info
Pass will be expanded to other districts and will be in most District Offices by the
end of this fiscal year. The benefit of Info Pass is to significantly reduce the lines
outside district offices for those who wish to obtain forms and other basic
information that do not require appointments.

e. The Yates Memos (see PROCEDURAL AND POLICY CHANGES FOR I-140
PETITIONS and see USCIS CLARIFIES ITS POLICY ON ISSUANCE OF RFEs)

Mr. Yates informed AILA members that the recent memoranda that he has
issued are the beginning of a comprehensive backlog reduction initiative. He
stated that backlog reduction was taking place before the terrorist attacks of
September 11, 2001. Approximately 800 employees focused on the project, but
the terrorist attacks caused a shift of these employees to national security
issues. Thus, backlogs began to increase to the current alarming levels. But
now, Mr. Yates confirmed that the shift has begun to focus back on reducing the
backlogs. USCIS will focus on backlog reduction, security and good customer
service.

With respect to various memos issued by Mr. Yates, the AILA membership was
advised that they are simply the first initiative to “turn the ship around.” These
memos concern the ability of an officer to deny a petition without issuing a
Request For Evidence, giving deference to previously approved petitions upon
filing extensions, and providing the appropriate financial documents that
accompany employment-based I-140 petitions. Mr. Yates also said that the
memos are not final and depending on how they are interpreted, he will revisit
each one and modify or withdraw them, as needed. It is the goal of USCIS to
reduce all backlogs by September 30, 2006.

It appears that the memos were necessary, in Mr. Yates’ perspective, because
of the climate among the USCIS adjudicators. After September 11, adjudicators
at USCIS have been fearful of approving cases that would later come back to
haunt them if the approved applicant committed a crime or committed any act
against the US. This fear prompted Mr. Yates to review and revise policies and
procedures through the issuance of these three memos.

With respect to the financial ability memo, Mr. Yates said that the rationale
behind that memo was the common belief among USCIS adjudicators that many
of the companies filing Form I-140 were not bona fide entities. Once again, he
said that USCIS adjudicators are fearful of losing their jobs if they do not have
clear documentation to show that the company is bona fide.
 
Name checking

Courtesy of "www.ilw.com"

National Security And Linguistics

The frustration that many immigration attorneys and their clients experience when their names appear as a "hit", may be in part due to the antiquated technology powering many terrorist/criminal watch lists called Soundex. Soundex, created in the early 1900s, is the underlying technology used by the FBI's National Crime Information Center (NCIC), the Interagency Border Inspection System (IBIS) and DHS's National Automated Immigration Lookout System II (NAILS II) list. According to experts in name-matching technology, Soundex relies on converting a name to a key code. In many instances, Soundex takes the first letter of the last name, drops all vowels and assigns a number to the next three consonants, often making mistakes, particularly with foreign names. Contrast this to the robust name-matching technology powering DOS's Consular Lookout and Support System (CLASS). CLASS has specifically targeted algorithms for Russian, Chinese, and Arabic and can accomodate over 80 characters, compared with 28 characters with NCIC. According to a news report (see below), funds have been requested to upgrade the name-matching technology used in government terrorist/crime watchlists.

While upgrading domestic security is clearly a part of our country's response to Al Qaeda, it is only a part. The more important part is to destroy Al Qaeda's roots overseas - a job which needs both military action overseas and peaceful persuasion overseas. These overseas measures are a lot harder than domestic security measures, and in disproportionately focusing on relatively easier domestic issues, we risk many more Al Qaeda attacks. Furthermore, in the immigration context, national security becomes a convenient excuse for all kinds of anti-immigration agendas. The immigration field is an unfortunate victim of a domestic security policy run amok and suffers with every American the likelihood of a devastating Al Qaeda attack.
 
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