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Immigration Notes

by Alan Lee, Esq.

December 5, 2005

I looked over some old notes, and thought that some of them might be of interest to the readers. And so here goes:

1. The American Immigration Lawyers Association (AILA) New York chapter held an October 11, 2005, meeting with Robert Cowan, Director of the National Benefits Center of U.S.C.I.S. (NBC) in which Mr. Cowan clarified the role of the NBC and attempted to answer questions on many issues. As many know, all family based cases for adjustment of status to permanent residence across the United States must first be sent for pre-processing to the NBC, which accepts the cases after fee-in at the Chicago lockbox. I asked and had answered my question of why the NBC administratively closes I-485 adjustment of status applications and I-765 employment authorization applications of individuals with exclusion orders since they could still adjust status to permanent residence before the U.S.C.I.S.. Mr. Cowan clarified that an administrative closure is not a denial. It just means that the NBC does not know what to do with the case, and that it wants the local office to deal with it. He stated that after 90 days, individuals could take the administratively closed employment authorization applications to the local C.I.S. district offices, and that he would try and change the language of the administrative closure in these situations, and that this would should be done within 30 days. So far, we have not seen a directive from the NBC clarifying the nature of the administrative closures. In addition, there appear to be two other problems with the scenario of going to the local office after 90 days. The first is that where the NBC has closed the application prior to the biometrics appointment, the local office says that it cannot process the employment authorization application. Second, even if the biometrics have been done, the local office still might not process the application where the computer check shows that the application is not in the local office, informing the alien that he/she should work with the NBC to have the file transferred to the local office. Hopefully, a solution can shortly be worked out. *

2. The Nebraska Service Center (NSC) Asylee-Refugee conference call of September 29, 2005, produced information that the postmark date controls for a reentry permit as to the date that the individual must be in the U.S. for filing purposes. The rule is that an applicant for a reentry permit must be physically present in the United States at the time that a reentry permit is being filed. There are many occasions in which individuals must leave the U.S. immediately and the advice given by most if not all attorneys has been to wait until the application is actually received at the NSC. This enunciation of the critical time for being in the U.S. allows for more flexibility in travel plans for applicants.

3. From our experience and that of others, the American consulate in Guangzhou has been denying immigrant visas and returning I-130 immigrant family based petitions to U.S.C.I.S. in marriage cases, many of which have much evidence to prove the bona fides of the marriage. The major difficulty here is that cases slide into limbo after denials from the consulate because of the lack of ability to track the cases any farther and the low priority given to them by U.S.C.I.S.. The consulate in Guangzhou has at times informed us that cases have been returned to the States, only for us to discover after much tracking with U.S.C.I.S. that the service center does not have the case. Upon confronting Guangzhou with the new information, we have received word that the cases are still in Guangzhou undergoing administrative processing. We have now created a form letter requesting the consulate in Guangzhou to inform us as to the specific date that a case is returned to the States . Unfortunately the consulate also hands back to individuals the documentation to prove the bonafide nature of the petition that it requests at interview for them to return with instead of including it in the case file to be transferred back to U.S.C.I.S.. On the other side, U.S.C.I.S. has compounded the problem by giving low priority to these returns, and the Vermont Service Center (VSC) for example has given us variable times as to when returned cases can be reached for processing, including informing us in June 2005 that it was only processing April 2003 returned cases. Other response letters that we have received from the VSC have asked the applicant to wait 30-60 days and 90-120 days, which dates have already expired without result. It does appear, however, that the VSC has become more aware of the problem recently and stated in a liaison meeting with AILA on September 22, 2005, that it was testing a new CLAIMS updating procedure that may result in consular returns information being available on-line. It admitted that it had a backlog problem and would continue to increase levels of resources to the remaining backlog. We have not as yet seen results in any cases, or even a response to our twice sent letter to the Center Director asking whether it would be more advisable to file new I-130 petitions explaining that the first petition was returned to the service center rather than waiting for the VSC to reach the cases according to their own schedule.

4. The Nebraska Service Center Asylee-Refugee conference call of September 29, 2005, was notable also for its discussion of points concerning treatment of I-730 asylum follow to join petitions for relatives: A.) One community-based organization noticed a trend that I-730 applicants always receive a referral for further evidence (RFE) where a marriage occurs after approval for refugee status prior to the admission of the refugee. B.) NSC officers do not have authority to grant follow to join in nunc pro tunc (retroactive approvals) for I-485 applications in the case of children who have aged out, and so the aged out children must interview at the local asylum office. C.) In I-730 petitions, the NSC only obtains a copy of the I-589 application of the principal alien, and not the entire file. (As a result, the NSC may ask questions or request documents that would not otherwise be needed if it had the entire file). D.) Currently the NSC is not adjudicating I-730 applications where the beneficiaries are in the United States. E.) Currently beneficiaries of I-730 application who were not inspected will not be given an I-94. Of course, readers should note that the conference call answers are subject to amendment by the Service Center or by U.S.C.I.S. headquarters at any time.

5. The Department of State (Department) appears to have finally got the message that the U.S. is in a scramble with other countries to attract foreign students. After 9/11, this country had become inhospitable to so many potential foreign students and scholars that they had simply gone to other countries or chosen to study at home. Chinese universities are even now jumping at the opening and making a major push to put themselves among the world's elite by attracting the best instructors and professors of Chinese descent from other countries. In a September 28, 2005, State Department memo to all consular posts concerning students and immigrant intent, the Department outlined several changes in policy to make it easier for students to come and study in this country. Many students are denied student visas on the basis of having immigrant intent (most non-immigrant categories including student require a showing that the applicants have no tendency to want to remain in the U.S. after the purpose of the visa is ended) because they are not able to show sufficient ties to the home country to justify (in the consular officer's eyes) the student visa. The Department pointed out that the concept of ties is relatively less useful in assessing the present intent of students because the typical student is young, without employment, family dependents, and substantial personal assets. The cable looked upon youths' major advantage in establishing their bonafides that they did not necessarily have long-range plans and hence were relatively less likely to form an intent to abandon their homes. On intended course of study, the Department stated that the individual's plans to study a subject for which there was no or little employment opportunity in the country of residence was not a basis for denying the visa because circumstances might change. The fact that the country of residence could provide equivalent college courses in the same subject matter was also not a basis for rejection as a student has the right to choose where he/she will obtain an education if accepted by a school. On the subject of going to lesser-known schools, the Department stated that all legitimate schools must be accorded the same weight under the law, and that there is no legal difference between community colleges, English language schools and four year institutions -- an applicant should be adjudicated on the bonafides as students regardless of the institution of program of study. Consular officers also should not go behind the I-20 to adjudicate the applicant's qualifications as a student for that institution. The I-20 is evidence that the school has accepted the applicant as a student and the choice of subject matter is not determinative of the applicant's scholastic aptitude. Finally the Department stated that students who have to apply for new visas if going home or traveling during their period of study should generally be reissued visas in the normal course of business unless circumstances change significantly from the time of previous issuance since students should be encouraged to travel home during their studies in order to maintain ties to their country of origin. This is a significant cable which bows to the realities of today's world in which a U.S. degree is no longer a necessary badge of or automatic gateway to success. However, the U.S. has still has a long way to go in bringing out the welcome wagon for foreign students, especially in the areas of curing deficiencies to make it easier for students to to open bank accounts, rent housing, drive cars, pay taxes, or even work part-time off-campus during the time that they are studying in the U.S.. Allowing them to obtain Social Security cards would greatly alleviate the situation. The non-refundable $100 SEVIS fee upon obtaining an I-20 form from a U.S.institution regardless of whether the applicant ever receives the student visa should be quickly dropped as it remains a source of tension between the U.S. and other countries and a discouragement to many intending foreign students to whom $100 is a large sum of money.

I hope that all readers had a wonderful and filling Thanksgiving.

* Since the original date of this writing, Mr. Cowan has responded that the NBC is now changing its procedure so that instead of administratively closing cases, the NBC will transfer the cases unadjudicated to the local field office for disposition. Applicants will receive a system generated transfer notice, notifying them that the case has been sent to the local office.

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:

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