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Highlights And Lowlights Of 2004

by Alan Lee, Esq.

Last year, we wrote an Immigration Daily Featured Article, "Highlights and Lowlights of 2003", which was fairly well-received by our readers, and so we are returning this year to clean up the unfinished incompletes, "I"s, that we handed out and to rank the various important immigration developments of 2004.

First the unfinished business
At the end of 2003, we gave an "I" for the Bush Administration's March 2003 act of splitting the INS into three agencies, USCIS (U.S. Citizenship and Immigration Services), ICE (U.S. Immigration and Customs Enforcement), and CBP (Customs and Border Protection). At the time, I pointed out that the reasons given for splitting the agency were nonsensical, but withheld judgment because of the recency of change. With another year, we assign the grade of "C". From published reports, many ICE personnel are dismayed by the changeover and have lost their sense of mission. They cannot understand why they should be separate from the CBP, and are actively campaigning to be part of that agency.

There is still much confusion in the public as to the lines of authority of each agency, and concern that aliens will suffer through interception by ICE or CBP and that these agencies will not be able to obtain timely information from USCIS that the aliens are entitled to be in the country. In a March 2004 interoffice memo by William Yates, USCIS ' Associate Director, Operations, he noted that USCIS will correct erroneous entry/exit documents of the USCIS and asylum offices, but not errors generated by CBP. Also many members of the public are confused as to whom they should write checks to when paying one of the agencies. The USCIS has listed 15 possible titles under which it will cash checks including CIS, BCIS, USCIS, DHS and INS. However, when we recently wrote a check to "Department of Homeland Security" for a NAFTA Free Trade TN applicant, the CBP inspector refused our check and made the client pay the fee at the border although the DHS is in charge of all three agencies. It does appear, however, that CBP has made great strides in implementing a more efficient entry/exit system, and that USCIS is making progress in slashing its 6 million case backlog.

We rated the National Benefits Center (NBC) an "I" last year as it was only beginning its major role of processing family based petitions and applications across the country. We still give the NBC an "Incomplete" as the final rule allowing individuals to file directly to the Center through a Chicago lockbox only came into effect in December 2004. We are encouraged by the larger number of cases that we have seen being scheduled for interviews this past year and would hope that by this time next year the NBC will have done so much of the pre-processing that interview times at local USCIS offices for family based adjustment of status cases will have dropped drastically around the nation.

The electronic initiative by USCIS in May 2003 to allow on-line filing of applications received an "I" because of the recency of the initiative and the limited type of applications at the time that could be filed using this method. The number of forms for e-filing has now increased, but this initiative rates a "C-" as even the USCIS acknowledged in mid-2004 that people were not especially enamored with e-filing since the supporting documents had be submitted by mail anyway. Faith in the most attractive feature to attorneys, the ability to beat same day deadlines through instantaneous filings, was undercut by the USCIS' closing of the H-1B cap for fiscal year 2005 at 8:00 p.m. on October 1, 2004, without warning or recourse after having led the American Immigration Lawyers Association to believe that the cap would not be reached for another week. .

On new topics for this year, although there were many, we chose 5:

The Department of Labor (DOL) receives a "B+" for the PERM rules released in December 2004 which pave the way for quicker adjudications of labor certification applications than under its present traditional and reduction in recruitment (RIR) labor certification programs. The final rule is much more palatable than the proposed rule of 2002 in matters such as the three additional steps for recruitment of candidates for professional positions, use of experience gained with the same employer and alternate experience to qualify for the labor certification, acceptance of business necessity arguments for foreign language and combination occupation requirements, and more workable rules governing standards for rejection of U.S. workers. The major questions between now and the PERM implementation date are whether to file labor certifications prior to PERM (and if yes by the traditional method involving a bare bones application and later supervised recruitment or RIR processing in which recruitment for the job opportunity is completed prior to submission of the application), and whether persons illegal in the country and unable to adjust status to permanent residence under present law should file anyway. (For further discussion of PERM issues, please visit our website at and the article "Legal and Illegal Aliens - PERM, RIR, Traditional or No Labor Certification Processing?").

2. Backlog reduction of the Department of Labor
DOL receives an "I" for its ambitious plan to cut sharply into its backlog of labor certification applications across the country. Through the 2005 Appropriations Act, DOL is finally receiving the funding it needs to carry out its proposed plan. Backlog centers are already up and running in Dallas, TX. and Philadelphia, Pa.. Tens of thousands of cases have already been transferred to these facilities, and the backlog is to be handled in the FIFO (First In First Out ) method. Only time will tell whether the plan can be executed, given that the PERM program must receive the bulk of attention and the backlog is so huge (310,000 cases as of late 2004).

3. Backlog reduction of the USCIS
We give the agency a "C" rating based upon results and the methods used to attain those results. At the end of fiscal year 2003 (September 2003), the USCIS estimated that it had a pending caseload of 6.1 million applications of which 3.7 million had been pending for a period in excess of the target cycle time (set at six months for most applications). The agency only considered the backlog to consist of the 3.7 million applications in which the time for adjudications exceeded the time limits set by the USCIS. In its report to Congress on November 5, 2004, it stated that from then until the end of the third quarter of the fiscal year (June 30, 2004), the backlog had been reduced by 477,961 applications. USCIS' Director, Eduardo Aguirre, reiterated the agency's goal to eliminate the backlog by the end of fiscal year 2006 (September 2006), noting that it would require a consistent positive performance in future quarters. Our less than stellar rating for this performance is not based upon the statistics as related by USCIS, but with the methods being used to reach these figures.

We initially object to USCIS' planned paper manipulation to obtain desired reductions. The agency announced in mid-2004 that I-130's (petition for alien relative) will now only be adjudicated at the time that priority dates become current. This appears to mean that most I-130's in the preference categories will in the future no longer be counted in the backlog. This paper reduction will eliminate most of the 1.5 million backlog in these applications (figure as of September 2003) with just a swipe of the pen without even attempting to assuage the anxieties of petitioner and beneficiary who will now have to wait long years before receiving an adjudication from the USCIS, eg.- in fourth preference family based cases involving siblings of U.S. citizens, I-130 adjudications could be put off for over 12 years (current visa priority date November 1992) without the petition being counted in the USCIS backlog. In its report to Congress, USCIS stated that "Since the benefit cannot be obtained until a visa number is available, the initiative will not delay a permanent resident status for eligible family members of United States citizens or lawful permanent residents."

However, this move does have unfavorable consequences. In the span of time required for adjudication, petitioners and beneficiaries could have moved many times and either failed to inform the agency of the move or the change of address notice may never reach the file (a common occurrence). These persons could be put in a limbo state of not knowing the fate of their petitions unless they constantly monitor the USCIS online case status system. Even more troubling is the effect that such a policy of adjudication would have where the petitioner passes away in the interim. In family based cases where the petitioner dies prior to the beneficiary's immigrating to the United States, the petition is automatically revoked. Congress through the "Family Sponsor Immigration Act of 2002" has now provided for the petition to be reinstated and for substitution of an alternative sponsor in humanitarian situations as long as the petition was approved prior to the death of the petitioner. The chances of beneficiaries being thus negatively affected by USCIS delay in approving I-130 petitions are greatly increased in family based preference cases where the waiting time for the preference category is long.

Our next objection is to USCIS' solution to the problem of pending adjustment of status family based cases by expediting one class of new filers so that they are interviewed within 120 days of filing while others languish for over two years in some cases. This was happening in New York in which U.S. citizen spouse cases were being filed and interviews conducted within 120 days while the district processing time chart showed that it had only reached August 2002 for its other cases. Although the pilot program was summarily discontinued without notice in New York on January 27, 2005, it continues on an indefinite basis in Los Angeles, Miami, Chicago and Dallas. Attempts to expedite cases should always begin with those which have waited the longest, not those that are just being filed today. The DOL had the right idea in addressing its backlog through the FIFO method, while USCIS' employment of the LIFO (Last In First Out) approach raises hard feelings and questions of basic fairness among those who filed long ago only to be bypassed by current filers.

In attempting to reduce the backlog of adjudications, USCIS issued two memos in 2004 encouraging its examiners to make final decisions on applications in many circumstances without sending referrals for further evidence (RFEs) to petitioners in order to clarify issues. In one memo, William Yates, Associate Director, Operations, for USCIS, stated that the agency could issue denials without RFEs where there is evidence of clear ineligibility, where the record is complete and CIS believes that the applicant has not met the burden to establish eligibility for the benefit, or on a discretionary basis where the evidence raises questions regarding eligibility or does not fully establish eligibility. In the second memo, Mr. Yates stated that where petitioners in employment based cases submit annual reports, tax returns or audited financial statements, the CIS can deny the petition and does not need to send out an RFE. We believe that CIS decisions will be more prone to egregious errors as examiners feel pressed to make decisions instead of pending cases for evidence that could explain away the doubt in the examiners' minds. I note that we have been on the horns of this policy lately, with USCIS denying without RFEs an overaged child's case who was clearly entitled to the benefits of the Child Status Protection Act and a notable musician's I-140 petition who the agency did not believe was extraordinary enough.

The final nail that USCIS wishes to drive in to shut the door tightly on cases that it denies is its November 30, 2004, proposed regulation to raise fees for appeals or motions to reopen or reconsider from their present level of $110 to over triple the amount, $385. The American Immigration Lawyers Association has rightfully reacted with indignation to the request for fee increases, calling for any fee increase to be tied to a withdrawal of the no RFE policy. If and when the proposed rule is implemented and if there is no change in the RFE rule, petitioners will find themselves having to pay a very sizable fee for appeals or motions of often baseless USCIS decisions. A cavalier response such as "Those individuals who feel that the decision constitutes gross error can file a request to have USCIS reconsider the ruling on Service motion without fee" is nonsensical as the agency on most occasions does not make corrective decisions before the deadline to file appeals or motions has already passed.

4. Treatment of F-1 and J-1 student applicants
For this, we give a collective "F" to the Bush administration, and include the USCIS, CBP, State Department, and Social Security Administration. The New York Times reported in its December 21, 2004 , article, "U.S. Slips in Attracting the World's Best Students", that foreign applications to American graduate schools declined 28% in 2004 and enrollments of all foreign students in undergraduate, graduate and post doctoral programs fell while university enrollments have been surging in England, Germany and other countries. The U.S. Chamber of Commerce had earlier estimated that the number of foreign students dropped by 8.5% between 2001-2003. Foreign students are very beneficial to this country including the number who remain and contribute their knowledge and skills to the building of the country and those who return home and influence their countrymen's views of the U.S after having had a positive educational experience in America .

Most students while here contribute heavily to the U.S. economy ($13 billion annually as per the New York Times). Yet this country is still stuck in the fog of 9/11 in which students are perceived as security risks and there is little regret about losing many of the best and brightest to universities in other countries. Unfortunately this is extremely shortsighted, and fails to take into account world realities in which there is heavy competition now and in the future for the students and the future benefits that they will provide to the countries in which they settle for schooling. Many countries of the world including the U.S. are facing a crisis of population in which the younger generations will not be able to replace the present aging work population.

These students will be the gold standard of the 21st century. Yet we treat them no better than flotsam on the open ocean beginning from the USCIS' non-refundable SEVIS student fee of $100 to even obtain I-20 or DS-2019 student eligibility forms - which fee is non-refundable even if the application is denied, to the CBP's multiple confusing announcements and deadlines in 2004 for machine readable passports and biometric passports, to the Department of State's consular officers having an ingrained culture of "no" to student applications (the New York Times article quoting Princeton University's president that Chinese students are getting heightened scrutiny and she had not received an answer that made sense when she asked for the rationale), to the Social Security Administration's recent regulation telling foreign students that it will not give them social security numbers to obtain drivers' licenses, apply for bank accounts or purchase or rent houses or apartments. Unless this attitude is remedied soon, we will find that we have won the security battle on students, but lost the war for the future well-being of the country.

5. InfoPass
The InfoPass system of USCIS to set up appointments by which individuals can avoid long lines at the district offices of USCIS rates an "A-". Instead of having people queue up in the cold and dark many hours before the opening of the agency's local office, this system allows computer access through going online to and clicking on InfoPass on the homepage. The system directs the user into possible appointment scheduling for all USCIS districts. Infopass is a great concept, but because it began in early 2004, the agency is still working out bugs in the system. Previously in New York, USCIS service centers instructed individuals whose I-751 (removal of conditional basis of resident status) applications had been approved to go to the district office on any day to complete processing and individuals whose I-485 (adjustment status to permanent residence) applications were approved to appear at the local office on a certain day of the week to complete processing, but upon traveling to the district office, these applicants were turned away and instructed to make InfoPass appointments. Similarly families with multiple members showing up with one InfoPass appointment were turned away and instructed to obtain multiple InfoPass appointments. These problems along with others have since been worked out in various ways. However, problems remain, and one that the agency may consider taking steps to resolve is the suddenly burgeoning business of self-styled entrepreneurs who position themselves to sell InfoPass appointment slots by immediately grabbing as many InfoPass appointment slots as they can as soon as the slots open on the USCIS website.

As always, we had hoped to give all "A's" for 2004, but the actions of the various agencies dictated a wider range of scores. Optimistically the ratings will be higher when 2005 closes and we write our next review of agencies in the immigration field.

2005 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.