DHS / US CIS Issues

GAO forum

From "www.ilw.com"

A GAO Forum discussing issues on the 21st Century Workforce invited a select group of national leaders and experts on the dynamics of the U.S. workforce, where participants offered the following suggestions to change immigrant worker policies:

U.S. policies should support more permanent immigrants and fewer illegal immigrants.
The federal government's visa programs should not have fixed yearly limits on the number of people who may enter the country. Instead, the number of allowable visas should be given in a range that adjusts to meet workforce demands.
The executive branch, not Congress, should be responsible for determining the number of temporary workers who can enter the United States. Another participant argued that Congress should be responsible because it represents the larger social interest.
U.S. immigration policy should not differentiate between permanent and temporary workers; instead, foreign workers should be considered transitional.
Non-native U.S. college graduates should be given green cards immediately after graduation instead of being sent back to their home countries.
The U.S. visa program for foreign students to attend college and graduate school in the United States should be revised. Recent declines in the admission of foreign graduate students, especially in math and science, have implications for future U.S. productivity and innovation.
The realization that immigrants play a pivotal role in creating a successful 21st century workforce leaves us hopeful that the US will pass immigration laws that reflect the importance of employment-based immigration to our country's economic strength and well-being.
 
CSC DEnials

AILA announced on its InfoNet last week that the California Service Center has been showing an unusually high rate of denials of I-140s. AILA is requesting that people share any denials that you do not think you would have received in the past by faxing to Crystal Williams at 202-783-7853 or e-mailing to reports@aila.com.
 
BAcklog reduction

Courtesy of "www.immigration-law.com"

07/03/2004: USCIS Actions for Backlog Reduction

The USCIS released the backlog reduction plan a few days back. However, the announcement lacked the details when it came to the actions to be taken at the stage of "backend" adjudication process. The backend reduction measures have been sporadically disclosed here and there through conference materials and meeting records. The following two are the additional information for the ongoing backlog reduction plan which we discovered:
Life of IBIS Clearance: In the immigration adjudication process, one of the most obnoxious culprit that causes backlog is IBIS name check for criminals and security risk aliens. For the three years, the immigration agency worked on a rule that the adjudicators conduct the name check before adjudication and the check remained valid "only for 35 days!" Accordingly, should the adjudication fail to complete within 35 days, the adjudicators had to redo the IBIS check over and over again. Not only the IBIS check takes time but also such work demanded a tremendous man/hour workloads leading to the eventual accumulation of backlogs. Recently, USCIS study revealed that the life of IBIS check can last longer than 35 days for the purpose of its intended detection of criminals and secruity risk aliens and has decided to change it from 35 days to "90 days." This is indeed a welcome move. This move will certainly help processing times of I-485 adjudications.
Pre-Certification of I-129/I-140 Employers: USCIS one time adopted a so-called "sole jurisdiction" concept allowing the U.S. employers to file all their I-129 petitions and I-140 petitions for their alien employees with one fixed Service Center upon the pre-certification by the Service Center involved. Accordingly, large firms hiring alien employees working all different states started filing all the I-129 H and L and I-140 cases with one Service Center no matter where the actual job sites were located. This also affected the location of I-485 filing for the aliens involved. Since the agency had a policy of requiring the aliens to file I-485 at the Service Center which adjudicated I-140 petition, people were able to file I-485 applications not at the jurisdiction of their residence but at the jurisdiction of the employer's sole jurisdiction. The I-485 filers had an option to request transfer of the filer to the Service Center of the jurisdiction of their residence, but considering the fact that the transfer would cause delays, it rarely happened. The immigration agency suspended the sole jurisdiction filing and ceased to grant new sole jurisdiction privilege to the employers for sometime by now. The Service Center which continued to the last moment was Vermont Service Center. The sole jurisdiction filing traffic was one time extremely heavy because, one time, processing times was the shortest and the adjudication standards and practices were most liberal and lenient at the Vermont Service Center. For instance, when there was a gap between the two jobs for the H-1B aliens, while CSC and NSC allowed a very short period of time of 30 days, the VSC recognized even 90-day period. One undesirable consequences of the concept of sole jurisdiction was the forum shopping by the large employers, shopping for the Service Center that gives the fastest and best services for their employment-based petitions and sought sole jurisdiction privilege at the Service Center. Now it is goine. However, the Semi-Annual Regulatory Agenda of the USCIS reflects that it was planning to intoduce a new concept named "precertification" of certain employers filing I-129 and I-140 to streamline adjudication process towards reduction of adjudication backlogs. The Agenda indicates that the precertification rule would be published in October 2004 with the two-month comment period. No details are available about at this time as to the meaning of precertification. One thing which is obvious is that the I-129 and I-140 nonimmigrant and immigrant petitions filed by the precertified employers will be processed and adjudicated differently and in a speedy mode. Please stay tuned.
Gradual expansion of online filing of various petitions and applications will certainly help in reduction of front-end processing of cases but not the back-end processing. However, the currently tested "concurrent adjudication" including the 90-day adjudication pilot programs at the Dallas District Office and California Service Center and its anticipated expansion into other jurisdictions in the future, issuance of EAD for the life of pending applications rather than for a fixed one-year which will soon be implemented, and the above-described other actions would certainly help in reduction of backend adjudications and we wholeheartedly welcome the bold move of the USCIS leaders. We understand that the USCIS is also working on a plan to remove I-131 Advance Parole for I-485 applicants down the road, most probably incorporating the travel permit into the EAD card which would serve as work permit as well as travel permit. The agency can achieve all these changes because of technology development that allows biometric identifier features in the system and in the documents which will be carried by the aliens. The immigrant community should
support the USCIS moves wholeheartedly. Lastly, the House action and USCIS decision to change the inquiry system back to the Service Centers from the private contractors of 800 number are another move that will truly serve the immigration consumers well which they deserve.
 
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I-140 denials

Courtesy of "www.immigration-law.com"

07/25/2004: Increasing I-140 Denial Culture and Importance of Maintaining H-1B Nonimmigrant Status

There are some indications that ever since the so-called Yates memo was released on RFE, employers see more and more RFE and denials of I-140 petitions on both the issues of employer's eligibility and alien's eligibility. From the perspectives of USCIS, the focus of denials of alien's immigration benefits can be placed either on I-140 or I-485 applications. For practical reasons, though, it may be more convenient and servces the agency's purposes better to focus on I-140. First denial of I-140 makes it unnecessary to reach the concurrently filed I-145, which can also be denied outrightly. Secondly, it can better manage political issues associated with the alien's change of employment freehand in the concurrently filed I-140 cases. Currently unless I-140 is first approved, the I-485 applicant is unable to change employment evan after 180 days of I-485 filing. Thirdly, denial of I-140 can block out the aliens who are not in a valid nonimmigrant status from
reattempting to file the concurent I-140/I-485 green card application second time, unless he/she is eligible for 245(i) benefits. The 245(k) benefit is practically shut out in the event that I-140 is denied. Remember that 245(k) benefits remain alive in the event that I-485 is denied and the alien can refile I-485 application based on the approved I-140 petititon inasmuch as the status violation or unauthorized employment lasted less than six months since the last admission to the U.S. I-140 denial will also block another option of green card, to wit, consular immigrant visa processing.
Fourthly, revocation of visa or immigrant petition has turned into a political quackmire in connection with the issues of admission of terrorists, and petition adjudication has received increated attention. In such I-140 denial culture, it is extremely important that the H-1B professionals maintain H-1B nonimmigrant status rather than sitting on EAD/AP status for the two reasons: The I-140 denial or I-485 denial does not disqualify the petitioner/applicant to refile the cases inasmuch as it does not constitutes a frivolous filing and more importantly the alien is in a valid nonimmigrant status. Those who stay and work on EAD/AP pending the decision of I-140/I-485 petition immediately loses a legal status as soon as I-140/I-485 is denied and becomes ineligible to file another I-485 unless he/she is eligible for 245(i). Secondly, the denial of I-140 is appeallable to the appellate agency and pending the decision of appellate agency, the alien in H-1B is eligible for 7th year or indefinite extension of H-1B beyond the 6-year limit if the alien is eligible for such extension under the AC 21 Act as amended by the DOJ Authorization Act. This is possible because the statutory amendment makes 7th year extension available until the "final decision" of his/her petition or application aftervpassing 365 days from the date of the labor certification application or a petition in the case of L/C waiver categories. Additionally, such extension is "not" subject to the annual cap of H-1B, which becomes more and more important nowadays. On the other hand, the denial of I-485 application is not appealable. In order to make the denial not final, one has to file a litigation before the federal court of appeals , which is usually not a workable option in terms of time and cost.
One time, legal counsels advised their clients of the benefits of EAD/AP options under the extremely high unemployment rate and the lenient interpretation of AC 21 by the legacy INS. At the time, denial of I-140 was a rarety rather than a norm. All the aliens had to worry about was denial of I-485 applications. The direction of wind has swifted substantially since then putting them in a different environment. One thing people should note is the added weapons which USCIS can utulize, which are made available by the "concurrent filing of I-140/I-485." The USCIS appears to dig into the I-485 supporting documentation and develop issues of I-140 denial from these evidence such as incime tax returns, W-2 copies, etc., which can be used to challenge employer's finanacial ability to pay or existence of bonafide permanent job or bonifide business or legitimate nature of job opening as related to the familial relationship between the employer and the alien, etc. When I-140 petition was filed separately, these evidence was not available to the adjuditors of I-140 petitions.
Caveat: The foregoing discussion is applicable "only" to H-1B professionals who can comply with "all" the terms and conditions of Labor Condition Application without any violations such as wages, locations, no benching, etc. Otherwise, staying on H-1B status can lead to denial of I-485 for failure of maintaintaing nonimmigrant status. Such aliens should stay and work on EAD/AP to avoid I-485 denials since the employer and the alien employee will no longer be required to comply with the terms and conditions of H-1B status. Please seek legal counsel.
 
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NSC / AP / Reentry permit

Courtesy of "www.immigration-law.com"

07/24/2004: NSC Advance Parole and Reentry Permit

It appears that NSC makes the lives of 485 waiters and green card holders easier at least in one area. There is no official announcement but our record reflects that the NSC started issuing Advance Parole consecutive to the date of expiration of existing Advance Parole. As for Reentry Permit, the NSC issues the document with the adjudication date as the starting date of the Reentry Permit that will last for two years from the starting date. This practice is particularly important for the Reentry Permit applicants who had to wait for one year or longer to see the adjudication of application. We commend the NSC for its action towards the right direction. In the past, there had been a waste of old Advance Parole or old Reentry Permit documents because of the legacy INS issuing the documents with the valid date starting from the application date. The same was true with the EAD renewal. Such practice indeed helped the legacy INS to add its worksloads leading to the mounting backlogs of the immigration benefits adjudications. The inconvenience and waste of expense for the applicants under the old practice need no mention here. Since the USCIS is expected to release a new regulation soon that allows the USCIS to issue EAD which will remain valid until the underlying green card application will be adjudicated, all of these moves of Mr. Bill Yates will contribute tremendously to reduction of the USCIS workloads and reduction of backlogs. We just hope that his another innovative idea to remove Advance Parole and incorporate the travel permit in the EAD card be favorably accepted by the higher-ups in the Administration and the immigrant community. This will again reduce "tremendously" the USCIS workloads in the future.
 
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Ombudsman

Courtesy of "www.ilw.com", "usinfo.state.gov"

Homeland Security Works to Improve Immigration Process
Ombudsman outlines new procedures, policies



By Todd Bullock
Washington File Staff Writer



A senior official at the U.S. Department of Homeland Security July 20 outlined new immigration procedures and policies at a Washington press conference.

"As a nation of immigrants with a rich immigration heritage, obviously a significant challenge that we in the United States have in the 21st century is forging a system that ensures both the safety of our borders, and yet openly welcomes immigrants as we have done for generations in the past here," Prakash Khatri, citizenship and immigration services ombudsman said.

"My office is charged with making recommendations for changes to the United States Citizenship and Immigration Services (USCIS) on problems that we have identified that both individuals and employers are having in their communications and their trying to seek the benefits that USCIS provides," Khatri said.

He identified three issues his office currently is studying in order to make policy recommendations: prolonged processing times for visas, immigration benefits fraud and case-status information improvement.

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

He said that his office recommended streamlining the immediate-relative immigrant processing system and the re-engineering of the permanent resident card replacement program, "which many permanent residents of the U.S. who travel quite frequently were having issues with.

"We made a recommendation on the family-based immigrant processing. Here in the United States, if you have a foreign national that has come to the U.S. and is married to a U.S. citizen or is the parent or child of a U.S. citizen, they can file, in most cases, an application to get their green card here," Khatri said. "And what we did was we actually made a recommendation to do the processing in a manner which would substantially increase the speed."

He noted that a USCIS pilot program in Dallas lowered green-card processing time to 75 days or less, in contrast with New York City where processing can take three years or more.

When asked how much time it takes for sponsorship of an immediate relative to be processed, Kharti responded, "For individuals who are immediate relatives, such as parents, spouses or children, there is no limit on the number of immigrants that can come in. What we are trying to focus on is ensuring that USCIS is using the most up-to-date technology to quickly and securely process all of these applications.

"Once a person is here in the country with an application for a green card here, if they have a family emergency they're required to have what's known as advance parole to leave this country, and then return in that same status so that they can continue to get the benefit that they initially sought," Khatri said.

He noted there should not be a situation where a person cannot leave the United States because the immigration service was unable to process an advance parole.

"We have been working on a number of fixes to that, and some recommendations will be forthcoming in the coming months on the advance parole issue that a number of people that are impacted," Khatri said.


Created: 20 Jul 2004 Updated: 21 Jul 2004



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Refugees

Courtesy of "www.npr.org"

As if there were no more hurdles, thre we go again. More refugees. Hope the USCIS has the resources!

July 21, 2004 -- Thousands of Hmong
refugees are being resettled in the United
States. Many fled their native Laos after
Communist forces targeted them for aiding
U.S. forces during the Vietnam War. Many
speak no English, raising fears among
government officials, who say budget cuts
have hurt social services for the refugees.
Minnesota Public Radio's Tom Scheck
reports.
 
Class Action

Courtesy of "www.CancasCity.com"

osted on Wed, Jul. 28, 2004


Immigrants suing to get immigration
papers processed


BY DIANE SMITH

Knight Ridder Newspapers


FORT WORTH, Texas - (KRT) - Recent news caught Maria Coreas' attention: Immigrants are suing the
government because they can't get prompt proof that they are in the United States legally.

The Irving, Texas, mother turned to her 18-year-old son and said in Spanish, "It's the same thing."

Coreas and her son, Alexis, were legal immigrants in limbo until about two months ago. They had gained
legal residency status in 2003, but the government withheld the documents they needed to prove they
could live and work in this country until they filed a lawsuit.

Now other legal immigrants experiencing similar delays are playing hardball. Immigrants in California,
Illinois, Wisconsin, New York and Florida have filed a federal lawsuit that calls on the government to issue
them proof of status.

Plaintiffs' attorneys want the case certified as a class action because they say it's happening too often in
too many places. The lawsuit was filed this month in San Francisco, but it resonates among legal
immigrants nationwide.

"Folks are waiting six months, a year, a year and a half, two years. They can't get a whole host of benefits
or rights without their proof," said Javier Maldonado, a plaintiffs' lawyer with a San Antonio, Texas, group,
Texas Lawyers' Committee for Civil Rights, and one of several attorneys involved in the San Francisco
lawsuit.

Maria Elena Garcia-Upson, a spokeswoman for U.S. Citizenship and Immigration Services in Dallas, said
the agency doesn't comment on litigation. She said the delays are generally due to heightened security
checks.

"We have to check their backgrounds," she said. "We have to ensure that the right person gets the right
benefit."

Every day, the agency issues 20,000 green cards, conducts 140,000 national security background checks
and answers in-person inquiries from 25,000 visitors to information counters at 92 offices nationwide, the
agency says.

Jaime Barron, a Dallas immigration attorney, says he has clients experiencing the same delays. He
believes the problem could be bureaucratic.

U.S. Immigration and Customs Enforcement brings deportation cases to court. When an immigrant gains
legal residency, the file is forwarded to U.S. Citizenship and Immigration Services, which handles
immigration benefits.

Barron said cases may hit a snag when files are being transferred between the agencies, which are part of
the Homeland Security Department.

Whatever the reason, the delays are a hardship for immigrants who are left economically paralyzed if
they can't show employers they are legal residents, Barron said.

"They have to survive however they can," he said.

Citizenship and Immigrations Services officials didn't stamp Alexis Coreas' passport after a judge granted
legal residency. The stamp is temporary proof of legal permanent status and allows travel out of the
country. The Irving, Texas, youth couldn't renew his driver's license, apply for a Social Security card, get
jobs or apply to colleges while he waited for a green card.

Maria Coreas was given the needed stamp, but it expired while she and Alexis awaited their green cards.
When she tried to have it renewed, the government refused. So both were left with no proof of status.

"You think everything is going to go downhill," said Maria Coreas, 42, who came to the United States in
1989 after fleeing the civil war in El Salvador.

She supports her family by cleaning houses and has spent hundreds of dollars on government filing fees.
She also had to pay an attorney to take the government to court.

But the legal route worked. The Coreas family sued the U.S. government after repeated letters, e-mails
and visits to immigration offices, said their attorney, John Wheat Gibson of Dallas.

Once Coreas and her son got their proof of status, they dropped their lawsuit. Now, they are ready for the
next leg of their American journey: gaining U.S. citizenship.

"Everything is better. We are happy," Maria Coreas said.

---

LEGAL PERMANENT RESIDENTS: Noncitizens who live legally in the United States, they are also commonly
known as permanent resident aliens, lawful permanent residents and green-card holders, according to
U.S. Citizenship and Immigration Services.

GREEN CARDS: A green card is proof that an immigrant is a legal permanent resident. A green card may
be obtained in several ways, including being sponsored by a relative who is a legal immigrant, petitioning
through an employer, or being an asylum-seeker or a refugee. For information about eligibility and
applications, or about other immigration policies, go to www.uscis.gov.

---

© 2004, Fort Worth Star-Telegram.

Visit the Star-Telegram on the World Wide Web at http://www.star-telegram.com.

Distributed by Knight Ridder/Tribune Information Services.
 
Journalists

Courtesy of "www.visalaw.com"

After 9/11, I remember the stories in the news reporting how the US was planning on winning the public relations battle in the war on terror. So I’m left baffled trying to figure out how the Department of Homeland Security’s recent crackdown on visas and the entry journalists helps. Journalists have been denied visas at higher rates, they’ve been recently cutoff from visa revalidation (something that people on I visas heavily use), they have been detained upon entry and summarily shipped back home, and otherwise given anything but the red carpet. These are the people that tell the rest of the world what is happening in America and what Americans are like. Surely there is a way we can do the basic security screening and at the same time make these people feel welcome? The damage we do by not treating journalists with basic respect is far worse than any security benefit we gain. We report on some of these problems this week as well.
 
Backlogs / The problem is not in our stars but in ourselves!

Courtesy of "www.shusterman.com"

4. Backlog Reduction: Time to Look for Root Causes

Backlog reduction at the USCIS has been a topic of lively discussion during the past month.

On June 17, the House Immigration Subcommittee held a hearing entitled "Families and Businesses in Limbo: The Detrimental Impact of Immigration Backlogs." The hearing featured USCIS Commissioner Eduardo Aguirre. Mr. Aguirre unveiled a "Backlog Elimination Plan" which he promised would eliminate the backlog by the end of 2006 by increasing productivity and reengineering how the USCIS processes applications and petitions for immigration benefits. The USCIS' "Backlog Elimination" page at

http://uscis.gov/graphics/aboutus/repsstudies/backlog.htm

links to the following documents:

Backlog Elimination Strategy Worksheet (6-17-04)

Commissioner Aguirre's Statement Before the House Immigration Subcommittee (6-17-04)

Backlog Elimination Plan Update

USCIS Slide Presentation

Then, on June 23, the same subcommittee held a mini-hearing on the same subject featuring USCIS Ombudsman Prakash Khatri, AILA President Paul Zulkie and immigration attorney Elizabeth Stern. Mr. Khatri testified about a number of innovative pilot programs that he has initiated which, if implemented on a national basis, could help revolutionize the way the USCIS does business. Mr. Zulkie informed subcommittee members that some of the agency's previous backlog reductions efforts had actually made the backlogs worse. For example, USCIS would deny a petition, the petitioner would appeal, but the agency's backlog would appear to diminish since the agency failed to count cases pending before its Administrative Appeals Office as part of its backlog. Ms. Stern observed that current USCIS "timeframes (were) divorced from the realities of business needs."

We link to the WebCasts of both hearings from our "Audio, Video and WebCasts" page at

http://shusterman.com/toc-audio.html#3

We also link to the written testimony of each witness:

http://www.house.gov/judiciary/aguirre061704.htm (Aguirre)

http://www.house.gov/judiciary/khatri062304.htm (Khatri)

http://www.house.gov/judiciary/zulkie062304.pdf (Zulkie)

http://www.house.gov/judiciary/stern062304.pdf (Stern)

Also, in mid-June, the 2004 Annual Report of the USCIS Ombudsman was submitted to Congress. We have posted this report online at

http://www.shusterman.com/pdf/ombud62104.pdf

We encourage our readers to view the WebCasts of the Congressional hearings, to read the Ombudsman's report and the testimony of the witnesses. Many excellent ideas for reducing the backlog are discussed.

To give the backlog reduction issue some historical perspective, I submit the following personal anecdote: In the late 1970s, when I served as a General Attorney (Nationality) for the INS, the backlog for naturalization interviews exceeded three years, and each applicant was required to bring in two character witnesses to testify on his behalf. Because of the long backlogs, at least half of the applicants had changed addresses and did not receive an interview notice. Therefore, each of the attorneys had very few interviews, and the backlogs continued to grow. In order to decrease the backlog, the government hired more attorneys, and then turned the interviews over to non-attorneys. The law was changed to eliminate the witness requirement (which was useless since witnesses never said anything negative about the applicants) which enabled examiners to interview more applicants. Eventually, the backlog was reduced to under one year. All of this could have been accomplished back in the 1970s except for outdated laws and bureaucratic inertia.

In 2000, as part of AC-21, a law was enacted to reduce backlogs on permanent residence applications to 180 days, and temporary visa applications to 30 days.

The events of September 11, 2001, and the resulting security checks, caused the backlogs to balloon. However, it is time that the agency stopped blaming ever- increasing processing times solely on the need for security checks. The internal process for evaluating examiners has created a snowstorm of RFEs which further delayed the application process. And what AILA has dubbed the "Culture of No" within the agency has further delayed the process. Why is it that, in 2000, the California Service Center approved almost 90% of all I-140s while today there are more denials than approvals? Has there been an increase in fraud and meritless petitions? We doubt it. When employers who have employed foreign-born workers for years, and who have received hundreds of I-140 petition approvals for their employees are now deluged with "ability to pay" RFEs, there is a problem in the system which won't be cured simply by raising filing fees or by technological fixes.

When it comes to premium processing, why is it that despite security checks, lack of personnel and all of the usual excuses, the USCIS always manages to process the petition/application within the 15-day timeframe?

USCIS Commissioner Aguirre would do well to meet with the Directors of the Service Centers, and start the meeting by declaring that "The problem is not in our stars, but in ourselves."

Only when the leaders of USCIS accept this basic truth can we expect that immigration backlogs will be reduced significantly. A good start would be to immediately increase the validity period of EADs and Advance Paroles, to take a hard look at the validity of some of the denials and RFEs and to restore communication between the Service Centers, the public and the private bar.
 
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Photos

Courtesy of 'www.immigration-law.com"

07/28/2004: Immigation Photograph Changes from Sideview to Fronview Photos

AILA has reported that the immigration services have decided to abandoned the traditional practice of sideview photo requirement in various immigration proceedings and adopt the passport/visa frontview photograph as early as August 1, 2004. Immigrant community is advised to take and submit the new fronview photographs from here on. Please watch for the USCIS' official announcement.

Comment: It looks like these are their priorities along with the change in Citizenship test.
 
Photos

Update:

07/29/2004: Transitional Period for Immigration Photograph Changes

AILA has been advised that at least until September 1, 2004, the USCIS will accept both frontview and sideview photographs. The people who have already filed the sideview photos do not have to resubmit the photos until at least January 2005 when the USCIS will decide what to do.
 
Posted by "lykos_999"

NSC : I-140s Await I-485 Adjudications
©MurthyDotCom
The Nebraska Service Center (NSC) apparently is literally concurrently adjudicating at least some pending I-140/I-485 cases, even if those cases were
filed before the changed procedure. We recently made inquiry about two I-140s that were taking a longer time than the stated processing date. In
response to our inquiries, the NSC advised that the I-140s would be adjudicated when the concurrent I-485 is ready for adjudication. Since the
published processing date for employment-based I-485s at the NSC is as February 2002, whereas the date for I-140s is September 2003, this
procedure will likely delay the processing of I-140 petitions considerably.
©MurthyDotCom
For the time being, we are continuing to receive approvals of I-140s in concurrently filed cases within the posted timeframes and well in advance of
the I-485. It does appear, however, that the new procedures are having an impact on at least some of the cases. As time goes on, this is likely to
increase. The significance of this for many applicants is that, if their I-140s are not approved, they may not be able to take advantage of AC21
portability based on the current USCIS policy as enunciated in the August 2003 USCIS Headquarters policy memo. Although the AC21 law itself only
requires that the I-485 have been pending for at least 180 days, and does not require that the I-140 petition be approved for the I-485 applicant to
enjoy portability, the USCIS position is that the I-140 petition should be approved. This new processing development creates significant legal and
policy issues since the USCIS, by its own interpretation and actions, may have nullified the benefit of AC21 portability and violated the intent of
Congress
 
New EAD Rule(s)

Courtesy of "www.immigration-law.com"

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

The USCIS published this desirable rule today. This removes the limitation for the USCIS to issue EAD for one-year validity period. Consequently, the USCIS is allowed to issue EAD for period longer
or shorter than the one-year EAD which the immigration community is familiar with. The USCIS determine the validity period of EAD each time a new EAD is applied, or a renewal EAD is applied, or a
replacement EAD is applied on the basis of the following standards:
Immigration status of the applicant
General processing time for underlying application or petition
Required background checks and response times for background checks by other agencies
Other security considerations or factors.
Where a political asylum is granted by the immigration court, USCIS will issue the EAD valid upto five (5) years.
This rule is effective today. EAD Rule.
 
I-485 Processing times

Courtesy of "www.murthy.com"

I-485 Update : I-140 Approvals Await I-485 Adjudication
Posted Jul 30, 2004
©MurthyDotCom
Regular readers of MurthyDotCom and the MurthyBulletin are aware that
on April 30, 2004, the USCIS Service Centers changed their procedures for
adjudicating concurrently filed I-140/I-485 cases. Essentially, the I-140 and
I-485 cases are now supposed to be on the same "track" for adjudication,
rather than being handled separately. This change is all part of various
USCIS backlog reduction efforts. This procedure and the impact we see
upon our cases have been reported in earlier articles, including our May 7,
2004 article, Faster I-485 Approvals Likely, available on MurthyDotCom.
We continue to follow the dates of case adjudications within The Law Office
of Sheela Murthy and from published information from the USCIS, as well
as other matters that appear to be related to this changed procedure.
©MurthyDotCom
NSC : I-140s Await I-485 Adjudications
©MurthyDotCom
The Nebraska Service Center (NSC) apparently is literally concurrently
adjudicating at least some pending I-140/I-485 cases, even if those cases
were filed before the changed procedure. We recently made inquiry about
two I-140s that were taking a longer time than the stated processing date.
In response to our inquiries, the NSC advised that the I-140s would be
adjudicated when the concurrent I-485 is ready for adjudication. Since the
published processing date for employment-based I-485s at the NSC is as
February 2002, whereas the date for I-140s is September 2003, this
procedure will likely delay the processing of I-140 petitions considerably.
©MurthyDotCom
For the time being, we are continuing to receive approvals of I-140s in
concurrently filed cases within the posted timeframes and well in advance
of the I-485. It does appear, however, that the new procedures are having an
impact on at least some of the cases. As time goes on, this is likely to
increase. The significance of this for many applicants is that, if their I-140s
are not approved, they may not be able to take advantage of AC21
portability based on the current USCIS policy as enunciated in the August
2003 USCIS Headquarters policy memo. Although the AC21 law itself only
requires that the I-485 have been pending for at least 180 days, and does
not require that the I-140 petition be approved for the I-485 applicant to
enjoy portability, the USCIS position is that the I-140 petition should be
approved. This new processing development creates significant legal and
policy issues since the USCIS, by its own interpretation and actions, may
have nullified the benefit of AC21 portability and violated the intent of
Congress.
©MurthyDotCom
NSC : I-485 Approvals
©MurthyDotCom
Another impact of the changed procedure, as we reported earlier, is that the
order in which cases are adjudicated is far less certain. While most cases
move through the system reasonably within the posted processing times,
we have recently been seeing more aberrations. For example, although
NSC reports an I-485 processing date of February 2002, our most recent
case approval was for a case filed in the end of September 2002. This case,
approved in the middle of July 2004, was seven months ahead of schedule.
Even more remarkable was another case approved on July 19, 2004 which
had been filed on May 3, 2003. This was over a year ahead of schedule and
more than three months faster than our previous fastest case in the NSC.
This particular case involved an I-485 filed just shortly before the
already-filed I-140 was approved.
..............................................
 
Continued

.................................
©MurthyDotCom
CSC : I-485 Approvals
©MurthyDotCom
The California Service Center (CSC) is even more unpredictable in the
timing of their case adjudications. On June 18, 2004, we received approvals
for two I-485 cases filed over a year apart. One case had been filed in early
January 2002; the other had been filed in late February 2003. Moreover, just
a few days ago, we received an approval for a case filed in late March 2002,
three months in advance of the published processing date. As of this
writing, in late July 2004, CSC lists a processing date of June 15, 2002.
©MurthyDotCom
VSC : I-485 Approvals
©MurthyDotCom
The Vermont Service Center (VSC) is essentially in keeping with the rest of
the Service Centers with regard to the unpredictability of processing dates.
We received three approvals within a day of each other in mid-July 2004 for
cases which had been filed over a year apart. The fastest case took
approximately 15 months, and had been filed on March 25, 2003. The
slowest case took two years and seven months, as it had been filed in
November 2001. The third case, approved at the same time, was filed in
April 2002 and took two years and three months. This is in keeping with the
current reported processing date of April 2002.
©MurthyDotCom
TSC : I-485 Approvals
©MurthyDotCom
The Texas Service Center (TSC) is also erratic, with cases that are filed a
year apart being granted within weeks of each other. The fastest case
approvals we received recently were for several unrelated cases filed in April
2003 and approved a year and three months later, in mid-July 2004.
However, a few weeks earlier, at the end of June 2004, we received an
approval for a case that had been filed in mid-April 2002. This much slower
case took two years and two months for approval. We also have cases
falling between these times, with a recent case approval in early July for a
case filed at the end of January 2003. All of these cases were faster than
the stated processing date of January 2002.
©MurthyDotCom
Conclusion
©MurthyDotCom
Processing times have long been somewhat unpredictable. This causes
confusion in the minds of many. Although backlog reduction is a laudable
long-term goal, those who have been waiting over 2 years may be upset to
find others, who filed only a year ago, to have received approvals ahead of
time. There are many other reasons that can cause processing of a case to
slow down, including issuance and response to Requests for Evidence and
security checks. Therefore, not all of the variance in processing times is
attributable to the new concurrent processing of the I-140 and the I-485.
However, some of the faster processing times do appear to be connected to
this change. We at The Law Office of Sheela Murthy will continue to
monitor this recent development and advise MurthyDotCom and
MurthyBulletin readers of any future changes as a result of this
modification.
 
Backlogs / Congress / Budget

Courtesy of "www.ailf.org"

The Endless Wait:
Will Resources Match the Resolve to Reduce the Immigration Case Backlog?

For more than 10 years, the government agencies charged with administering our nation’s immigration laws have been plagued by a growing backlog of cases and delays in processing applications. The creation of U.S. Citizenship and Immigration Services (USCIS) and abolition of the Immigration and Naturalization Service (INS) has changed the name of the agency in charge, but the problem persists. A General Accounting Office (GAO) report issued in May 2001 found that the INS application backlog had increased nearly four-fold since Fiscal Year (FY) 1994 -- from 1 million to 3.9 million. NOTE 1 Recent reports from USCIS indicate that while some progress has been made, there are still 3.7 million cases identified in the backlog. The result is that many of those seeking to come legally to the United States must wait several years for their cases to be adjudicated, with serious consequences for U.S. businesses and families. Over the years, piecemeal attempts by the agency to reallocate available resources in order to reduce the backlog have only made the situation worse. Reductions in one area of the backlog have simply resulted in even greater backlogs in other areas. These experiences indicate that it is time for a holistic approach and a serious commitment by Congress to provide the agency with the resources it needs.

On June 17, 2004, Eduardo Aguirre, Jr., Director of USCIS, testified before the House Subcommittee on Immigration, Border Security and Claims (chaired by Rep. John Hostettler (R-IN)) about the “Backlog Reduction Plan for Immigration Applications.” Several days later, on June 23, the Subcommittee’s hearings continued with witnesses responding to USCIS’ proposals and speaking about the detrimental impact of processing delays, or “backlogs.” All the witnesses, including Aguirre, agreed that response times on immigration and naturalization petitions were unreasonably long and having serious negative impacts on separated families and businesses trying to hire new employees. The “Backlog Elimination Strategy” proposed by USCIS relies mainly on information technology and new “fee for service business models” and promises to eliminate the backlog by end of 2006. Yet, this strategy appears doomed to failure given the lack of serious funding for new systems and personnel.

Defining the Backlog

Each year USCIS receives about 6 million applications. From FY 2001 to the end of FY 2003 the number of pending applications increased by 59 percent as a result of revised USCIS case-handling procedures implemented after September 11th. Major increases in background checks slowed the adjudication of applications, while hundreds of adjudicators were redeployed from their duties for other assignments. Many of these reassigned personnel have now returned to their USCIS adjudication responsibilities, but the backlog of applications has declined very little.

Director Aguirre defined the backlog as the number of cases that exceed their “cycle time,” or targeted processing goal. For instance, naturalization and adjustment-of-status applications have a 6-month cycle time, while applications for non-immigrant workers, change of status, and employment authorization have 3-month cycle-time targets. Using this definition, USCIS calculated the backlog of cases exceeding these cycle times as approximately 3.7 million at the end of 2003.

For applicants, however, cycle times are only part of the story. From the agency’s perspective, almost any action taken on an application within its cycle time can keep the case from being classified as part of the backlog, even if the case remains pending. Thus, requests for additional evidence, delays in security checks, and transfer of cases to the Administrative Appeals Office produce a secondary or “hidden backlog” the agency does not account for in its processing time reports NOTE 2 These delays can add months or even years to the processing of an application from the time it arrives at the agency until it is granted or denied. If, as Director Aguirre testified, the goal of a backlog reduction strategy is to “provide immigration information and benefits in a timely, accurate, consistent, courteous, and professional manner,” then the plan must begin with an honest assessment of how the agency handles its caseload.

Negative Effects of the Backlog

There are many examples of serious negative consequences arising from the backlog. Applicants who patiently remain abroad to be reunited with their relatives are often kept waiting for years and forced to re-file their applications when their fingerprint records expire after 15 months. Many college scholarships available only to permanent residents or U.S. citizens are lost to applicants trapped in the backlog. If USCIS does not process applications before the applicants’ nonimmigrant visas have expired, the applicants can lose their state driver’s licenses because their nonimmigrant status is no longer valid. Some states require a Social Security card from anyone applying for a driver’s license. But, Social Security cards cannot be issued until the Social Security Administration has verified an individual’s immigration status with the Department of Homeland Security.

Adjudication delays also cause applicants to lose jobs and frighten away talented immigrants, while encouraging others to pursue non-legal avenues to stay in the United States. Moreover, the delays have an adverse impact on U.S. businesses. As business immigration attorney Elizabeth Espin Stern testified before the House Immigration Subcommittee, businesses in an intensely competitive global market for people of talent, particularly in technical and scientific fields, are discouraged from expanding their U.S. operations and forced to go offshore due to processing delays. She noted that a “recent study by eight renowned business associations indicates that visa delays alone have been responsible for some $31 billion in lost dollars to U.S. business since July 2002.” NOTE 3

A Question of Resources

USCIS Director Aguirre’s proposed solution to the backlog relies heavily on better technology to identify low-risk cases for fast-track processing; electronic biometrics to store fingerprints, photographs and signature information, thereby eliminating redundancy in new or re-filed applications; better on-line customer services including e-filing, NOTE 4 outsourcing, and sending case updates by email; and improved internal procedures to eliminate unnecessary re-filing of evidence, as well as issuing Employment Authorization Documents (EADs) valid up to 5 years. Four pilot projects have been launched to evaluate the effectiveness of these measures in improving customer services and reducing backlogs. Director Aguirre admits he is relying on an almost 20 percent increase in efficiency to meet his backlog-reduction goals.

In early 2001, President Bush proposed funding of $500 million over 5 years ($100 million per year) to reduce processing times to less than 6 months. Unfortunately, in the hide and seek game of federal appropriations, the question of exactly how much additional funding USCIS is getting is difficult to answer. In a February 2004 news release, the agency announced that it would request a 60 percent increase in funding dedicated to backlog reduction, bringing the total request for appropriations to cover operating expenses to $140 million. However, compared to the $235 million appropriated in FY 2004, funds to cover operating expenses at the agency appear to have been cut by $95 million. The American Immigration Lawyers Association (AILA) has also pointed out that the proposed USCIS budget for FY 2005 requires for the first time that overhead costs (fixed expenses such as file maintenance, payroll functions, etc.), projected to be $155 million, must be paid out of the user fee account instead of through directly appropriated funds.

The serious consequences of such cost shifting were addressed in the testimony of Paul Zulkie, President of AILA: “Because of the backlogs, the agency is in the constant situation of using new filing fees to pay for adjudication of applications filed in previous years. Essentially, the agency is using new sales to purchase old inventory, with no visible means to pay for the new inventory that continues to come in… Paying overhead out of the fee account is a particularly dangerous action and could be the factor that finally causes the pyramid to fall. Overhead does not rise and fall with the number of applications: it remains fixed whether the agency gets one application or one million. But if, as has happened in the first part of this year, the volume of applications decreases, so does the income generated from fees. And there is no reliable stream of income to continue to maintain the fixed expenses. Overhead is an amount that must come from directly appropriated funds.” NOTE 5

Director Aguirre indicated that he is satisfied with the size of his budget, and expressed confidence in his ability to meet processing goals with the money and resources he has available. However, other witnesses testifying before the Subcommittee voiced concern that USCIS is relying too much on user fees for its funding (particularly the $1,000 per case fee for “premium processing”), cannot bring in new personnel to address the backlog because of a DHS hiring freeze, and continues to be saddled with unfunded mandates that rob it of existing staff, as happened after September 11th. In addition, as Ms. Stern pointed out in her testimony, timely adjudication of cases cannot be the only goal. Decisions by the agency must also be based on the correct legal standards, which require the establishment of consistent adjudication standards and the timely promulgation of new regulations.

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Continued

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http://www.ailf.org/ipc/endlesswaitprint.asp

Conclusion

Congress and the White House have pledged for a decade to reduce the backlog of immigration cases, but without providing the resources necessary to do the job. Instead, they have under-funded immigration services and then played a shell game with the money, moving funds from one problem area to another even though the funds are insufficient to actually solve the problems. Meanwhile, applicants are left to pay higher and higher fees to file applications that may sit for years without being acted upon. The determination of the newly formed USCIS to finally eliminate the backlog of cases is encouraging. However, if lawmakers truly wish to reduce the backlogs, the Administration must ask for – and Congress must appropriate – the funds needed to do so.

Copyright 2004 by the American Immigration Law Foundation.



Endnotes

1 U.S. General Accounting Office, Immigration Benefits: Several Factors Impede Timeliness of Application Processing, May 2001.

2 Testimony of Paul Zulkie on behalf of the American Immigration Lawyers Association on “Families and Business in Limbo: the Detrimental Impact of the Immigration Backlog,” before the Subcommittee on Immigration, Border Security and Claims, House Judiciary Committee, June 23, 2004, Washington, D.C.

3 Citing The Santangelo Group, Do Visa Delays Hurt U.S. Businesses?, Washington, DC: June 2, 2004.

4 E-filing began with two of the most frequently filed forms in 2003. By the end of FY 2006, it is planned that twelve forms representing 90 percent of the applications for benefits will be available.

5 Testimony of Paul Zulkie, ibid.
 
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