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Hurricane Katrina And Other Happenings

by Alan Lee, Esq.

In the wake of Hurricane Katrina, individuals with immigration cases in the New Orleans area are wondering how it will impact the processing of their cases. There is unfortunately at the time of this writing no foretelling what kinds of delays their cases might suffer, but the good news is that the New Orleans district office sustained no damage and that all records and files were secured, and are being transported to the U.S.C.I.S. sub-office in Memphis at 842 Virginia Run Cove, Memphis, Tenn. 38134, as the New Orleans office will remain closed for the foreseeable future. A U.S.C.I.S. press announcement on September 8, 2005, stated that U.S.C.I.S. offices across the nation stand ready to assist customers impacted by the hurricane. Our recent experience confirms this attitude as we spoke with the U.S.C.I.S. National Customer Service Center concerning the case of one of our clients in New Orleans with a biometrics appointment who is now in Houston and were informed that he could appear at any of the three application support centers in Houston with his notice of appointment and any kind of identification showing that he was from New Orleans. 

On a less dramatic note, the following may prove helpful to other individuals in their cases:

1. Following the passage of the Real ID Act of 2005 on May 11, 2005, removing the conditional basis of asylum for individuals with population control policy asylum grants [1], the U.S.C.I.S. did not come out with instructions on how conditional asylees should further proceed with applications for adjustment of status to permanent residence (I-485s) or to call over their dependents from overseas (I-730s). The policy vacuum has left many individuals including attorneys in a quandary of whether to file or not. This law firm communicated with the Central Office of U.S.C.I.S. earlier and received the advice that conditional asylees could file for adjustment of status so long as they had already been in conditional asylee status for one year. Thus far, it appears that U.S.C.I.S. has had no standard procedures and we have encouraged the question to be brought up either before or in a liaison meeting with the American Immigration Lawyers Association. The Nebraska Service Center further appears to have accepted some applications for both benefits, rejected some I-485 filings, and held onto others without accepting or rejecting the fees. U.S.C.I.S. should come up with a definitive statement of whether it will demand that conditional asylum status be formally lifted before either benefit can be filed, or whether it will accept I-485s and I-730s now as properly filed subject to a condition subsequent that there is no issue that would keep the applicants from obtaining final asylum approval. The latter approach is more sensible for two specific reasons: 1.) At this time, individuals who are being granted asylum status based on population control policies of the home country are immediately eligible to file I-730 applications for their overseas dependents. Why should they be in a better position than individuals who were granted asylum on the same grounds years ago? 2.) Conditional asylum status was lifted in the past when a number became available and new security clearances were completed. But there now appears to be little reason to require new clearances as a condition of full asylum approval at the cost of further delaying this class' right to obtain permanent residence or reunite with their family members. In order to attain conditional asylum status, security clearances were run in the past on all cases, and so U.S.C.I.S. already knows that the vast majority of the conditional asylees will not trigger security hits. Further U.S.C.I.S. will conduct security clearances again as soon as these aliens apply for permanent residence. The great majority of conditional asylees have already spent one year in asylum status and would be immediately eligible to apply for permanent residence. Under the present system of adjustment of status, requests for fingerprints are generally sent out within one month of I-485 application filing. Thus, there is no compelling reason to deny individuals the right to file both I-730 and I-485 applications at this time. 

2. More than an inconsiderable number of individuals filing I-485s or N-400 applications for naturalization have been puzzled to receive a notice of canceled interview and have wondered whether there was something wrong with their cases. U.S.C.I.S. has stated that interviews are canceled for a variety of reasons and that many of them are unrelated to the merits. Reasons include bounced checks, no related "A" file (U.S.C.I.S. opens "A" files on anyone applying for permanent residence or various other benefits or coming to the attention of the agency for other reasons but sometimes does not have all related files pertaining to the individual in time for an interview), pending IBIS (Interagency Border Inspection System) or security check clearances, etc.

3. On September 28, 2005, the fee for appeals and motions to reopen and reconsider with U.S.C.I.S. rises from $110 to $385. (Ed. corrected 09/29/05).  The fee increase does not affect cases being appealed to the Board of Immigration Appeals, for which the appeal fee will remain $110. The fee increase did have a beneficial effect in forcing U.S.C.I.S. to reevaluate its April 23, 2004, RFE (referral for further evidence) memo under which RFEs were not required for every case prior to adjudication and situations were defined wherein adjudicators could deny applications or petitions without issuing RFEs. That policy resulted in a slew of unjustified and poorly reasoned denials, and when U.S.C.I.S. proposed the fee increase, many individuals pointed out that it would be unfair for the agency to ask its customers to pay $385 to reverse decisions which were indefensible. The policy was rescinded in a memorandum dated February 16, 2005, under which the norm of RFEs and notices of intent to deny (NOIDs) was established with the concomitant commitment that U.S.C.I.S. officers are only to deny without an RFE where there is statutory ineligibility for the benefit sought.

4. U.S.C.I.S. announced in a Service Center Operations teleconference on August 8, 2005, that where employment based cases have been transferred from service centers to local district offices, employment authorization (I-765) and advance parole (I-131) applications should be filed with the service center that had original jurisdiction over the I-485. This clarification of jurisdiction is welcome news to all as there has been confusion in the U.S.C.I.S. over whether jurisdiction lies with the service centers or the National Benefits Center (NBC) which handles the pre-processing of cases for the local district offices. Local offices had been advising individuals to file with the NBC; the NBC had been saying that jurisdiction for these applications remained with the original service center; and applications sent to the original service centers had been transferred to the local district offices. Now hopefully everyone will be on the same page. 

5. Both the Texas and California service centers have recently confirmed the nunc pro tunc principle to rectify cases that were mistakenly rejected. In the American Immigration Lawyers Association (AILA) /Texas Service Center liaison minutes of August 1, 2005, item 4 concerned wrongful rejection of an I-485 application for a China born applicant who claimed cross chargeability to the country quota of Ethiopia as his dependent spouse was born in that country and applying for adjustment of status at the same time. The applications were rejected right before July 1, 2005, when EB-3 visas were still available except for natives of China, India and the Philippines. On July 1st, EB-3 visas for all countries became unavailable except for Schedule A cases. After advising AILA members to flag I-485s requesting cross-chargeability with large bold lettering, the Service Center stated that cases that had been wrongfully rejected should file a request for nunc pro tunc acceptance and a backdated "received" date based on the filing having been "previously rejected in error." The applicant should include proof of the timeliness of the previous filing attempt. Item 4 of the AILA/California Service Center liaison meeting of August 24, 2005, asked the similar question that if a case was wrongly rejected by the mailroom and as a result, the individual was unable to refile the case due to quota backlogs, did the California Service Center have discretion to take the petition retroactively. The service center affirmed the principle that it had discretion to take the I-485 retroactively if the case was incorrectly rejected. As the service centers are prone to making mistakes because individuals in the mailrooms are not experienced officers, it is good to hear two service centers openly acknowledging their authority to accept I-485s even where the quota is no longer available so long as it is proven that they originally wrongfully rejected timely submitted applications. 

6. The California Service Center is presently alarming I-130 (petition for alien relative) petitioners by sending out requests for information which do not define what is missing from the original petitions but request the petitioner to submit any from a long list of items which may not have been originally submitted with the filing. It appears that the California Service Center sends out these all inclusive letters at least 90 days before the I-130 is slated to be worked upon by an officer to reduce the need for sending an RFE at a later point. But if an officer sees that something is missing from the I-130 while adjudicating the petition later, he/she is supposed to send out an RFE anyway. 

7. Customs and Border Protection (CBP) recently acknowledged that inspection errors can be corrected at any deferred inspection location, and not just the one located closest to the port of inspection at which the error occurred. An example of inspection error commonly seen is a short date on an I-94 entry/exit card in which the nonimmigrant H-1B petition is valid for two or more years, but the I-94 card of the H-4 dependent is marked with validity for only a few months to match the length of the visa in the passport. (Individuals are supposed to be given the period of time on the petition and not the visa as long as there is sufficient time remaining on the passport). This information will assist many individuals with inspection errors who enter the U.S. at international airports which are far removed from their ultimate destination, e.g. individuals who land in Los Angeles to see the sights and visit relatives before traveling on to San Antonio. The question was brought up by AILA since there were many complaints that CBP officers at deferred inspection stations were under the belief that an individual had to go to the port where the error was made in order to have an I-94 corrected despite an updated section of the Inspectors Field Manual that allows individuals to seek a correction at any deferred inspection location.


1 Under prior law, grants of political asylum were conditional for applications based upon past persecution or a well-founded fear of persecution because of population control policies of the home country. The conditional basis was lifted only after a number (capped at 1000 per year) became available. On December 16, 2004, the Department of Justice estimated that most individuals who had been conditionally granted asylum by the immigration courts or U.S.C.I.S. on or before September 15, 2000, and whose identity, background, and security checks had been updated and cleared, had been notified of eligibility for final asylum grants. It further estimated that because it had more than 9000 asylum applicants on the waiting list, those who were granted conditional asylum during fiscal year 2004 would have to wait approximately nine years to obtain full asylum benefits. 

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. Related to this article, Mr. Lee correctly analyzed the statutory language to allow the additional 20,000 H-1B numbers to apply to all qualified H-1B applicants in his December 4, 2004 article, "Season's Greetings from the Immigration Front". Also see his April 14, 2005 article, "Additional 20,000 H-1B Numbers For FY-2005 - Should Aliens Apply For FY-2006 Instead?" and "Some Details Appearing For FY-2005 Additional 20,000 H-1B Numbers." Alan Lee can be reached at:

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