H-1B Usage, End of Visa Revalidation And Other Late Breaking Developments In Immigration Law
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
At the AILA conference, Fujie Ohata, Service Center Operations Director, announced that 16,000 H-1Bs against the Fiscal Year 2005 cap have been approved. Thus, it does not seem likely that the cap will be reached before the start of the new fiscal year, October 1.
The United States Citizenship and Immigration Services (USCIS) began accepting H-1B filings for Fiscal Year 2005 (October 1, 2004 – September 30, 2005) since April 1 of this year.
A panel during the plenary session also announced that there was not likely to be a breakthrough with legislation to increase the H-1B cap this summer. Moreover, USCIS has disregarded prior policies with regards to assisting people who are F-1 and J-1 visa holders who have been caught in a status gap before October 1. Informally known as the “Cap Gap,” a person on F-1 status that expires before October 1 would not be able to change status in the US but would have to leave the country to apply for the H visa at a US consulate overseas.
In previous years, when the cap was reached, the former INS used its authority to automatically extend F or J status till October 1 so that the H-1B applicant could remain in the US and change status. This policy was established in a 1998 memorandum by Michael Pearson, Executive Associate Commissioner of INS.
A panel comprising USCIS officials announced that it is reviewing the “Cap Gap” issue and policy guidance will be published soon. However, USCIS admitted it currently has no intention to reinstate the favorable policies of the Pearson 1998 memo that bridged the gap for those individuals in F or J status who would be out of status by September 30th and who had approved H-1B petitions with an October 1st start date.
II. State Department To End Visa Revalidations
Deputy Assistant Secretary of State, Catherine Barry, announced that applications for visa revalidations will no longer be accepted after July 6, 2004. The visa revalidation procedure allows people who already have C, E, H, I, L, O, and P visa stamps in their passports to have them revalidated within the US instead of going overseas for a new visa.
AILA has learned that the cut-off date has now been changed to July 16, 2004, but that exception will be made for applications pending on that date if additional information has been requested.
The rationale for terminating visa revalidation is that the Department of State lacks the capacity within the US to acquire biometric identifiers required by all visas from October 26, 2004.
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
The Executive Office for Immigration Review (EOIR), which administers immigration courts and the Board of Immigration Appeals, announced that it will start a National Immigration Court in Falls Church, VA, to handle hearings by video of backlogged cases from courts around the country. It will start on July 19, 2004, with cases in the New Orleans immigration court. The parties will appear at the local court, but the judges will sit in their offices in Falls Church, VA, and the hearings will be held by video conferencing. Parties will have the option to travel to Falls Church, and appear in person. Both AILA and the American Immigration Law Foundation (AILF) have voiced serious objections to the video hearings process. In most immigration court hearings, especially one involving asylum, the credibility of the witness is paramount. An immigration judge can best assess the credibility of a witness in person rather than through an image on video.
In Russo v INS, 296 F.3d 316, the Court of Appeals for the Fourth Circuit severely criticized the use of a video hearing in an asylum case. This court, one of the most conservative courts in the country, observed that a petitioner's credibility and demeanor plays a pivotal role in an asylum determination; and thus, an unfavorable credibility determination is likely to be fatal to such a claim. Further, the lawyer representing such a claimant will also be impacted in a video hearing, as he/she will not be able to interact effectively with the immigration judge or opposing counsel.
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.
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.
About The Author
Cyrus D. Mehta, a graduate of Cambridge
University and Columbia Law School, practices immigration law in New York City. He is the recipient of the 1997 Joseph Minsky Young Lawyers Award. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or email@example.com. This
article originally appeared in www.cyrusmehta.com. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY.
Romulo E. Guevara is the senior associate attorney at Cyrus D. Mehta & Associates, PLLC. He received his J.D. from Hofstra University School of Law in 1996. Prior to joining the firm, he practiced business immigration law and represented clients before Immigration Courts, the Board of Immigration Appeals and consular offices abroad.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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