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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

News From CLINIC's Case Files: Issue Five

by Catholic Legal Immigration Network, Inc.'s Division of Public Education and Advocacy

The following is a compilation of examples of vulnerable immigrants and developments that negatively impact the population served by the affiliate and partner agencies of the Catholic Legal Immigration Network, Inc. (CLINIC).

October 2005: Issue No. 5

1. Refugee Adjustment of Status Applicants Receive Greencards with USCIS-Generated Errors

In March 1998, Ms. T entered the United States as a refugee pursuant to section 207 of the Immigration and Nationality Act (INA). Under the law, refugees are eligible to adjust status to Lawful Permanent Resident (LPR) one year after their initial arrival in the United States. When a refugee is approved for permanent residence, he or she is admitted as an LPR as of the date of his/her initial arrival into the United States. This is important, as five years of LPR status is required of applicants for U.S. citizenship. When Ms. T received her permanent resident card (greencard), the "Resident Since" date was erroneously noted by the USCIS as November 2002. (This meant that Ms. T appeared ineligible to apply for U.S. citizenship until 2007). The correct date should have been March 1998, the date of Ms. T's initial entry into the United States. To correct this error, Ms. T filed an I-90 Application to Replace Permanent Residence Card to USCIS. The instructions for the I-90 Application indicate that the filing fee for the application can be waived if the application filed was the result of a card issued with a USCIS-generated error. After filing the application, Ms. T received a rejection notice from USCIS stating, "Based on the information you provided, the correct filing fee is $70.00. Please submit your completed application/petition with the appropriate fees to the address listed on the bottom of this notice." The fee charged by USCIS for biometrics is $70.00, a fee Ms. T had already paid when she filed her initial application to receive a her permanent residence card.

CLINIC raised both of these issues with USCIS HQ. On September 7, 2005, USCIS issued a press release announcing changes to the Form I-90 filing process to correct USCIS generated errors. As a result of these changes, such applicants will not be charged additional filing and biometrics fees. USCIS also informed CLINIC that between February and July 2005, the Nebraska Service Center (NSC) issued between 52,000-53,000 greencards with the same "resident since" date problem noted above as a result of a computer systems error. USCIS HQ stated that the NSC was putting together a process for issuing new cards to individuals who received cards with this error. This process has yet to be announced to the public.

2. Two Years and Counting....Security Checks and Processing Delays Keep Asylee and Spouse Separated

Mrs. B, a Christian Chaldean who fled Iraq and received asylum in the United States, filed an I-730 Asylee Relative Petition for her husband in March 2003. The petition was approved in September 2003. Mr. B was scheduled for an interview at the U.S. Embassy in Jordan in late 2003, but due to security reasons, had to flee the country. In February 2004, he reached Damascus, Syria, and after waiting several months for his file to be transferred to the U.S. Embassy in Damascus, was interviewed in June 2004. The U.S. Department of State granted Mr. B's security clearance in November 2004, but since that time Mr. B has been waiting for a security clearance from DHS. After inquiring with the DHS Office of Refugee Affairs in February 2005, Mrs. B and her attorney were told that Mr. B's case was undergoing a "security screening" and that he just had to wait. Despite additional inquiries to DHS, Mr. B's case continues to be pending and he and his wife remain separated.

3. Security Check Delays Prolong Permanent Residence Applications for Refugees

Two brothers, J- and A-, entered the United States as refugees in November 2000 with their parents. In early 2002, the entire family simultaneously filed applications for lawful permanent residence. In December 2002, the family was fingerprinted by USCIS. While all other members of their family have received their greencards, J- and A- continue to wait. Multiple inquiries have been submitted to USCIS. In response to the last inquiry submitted, USCIS sent a response that stated, "Your application is currently under review. Please allow more time."

4. USCIS Erroneously Denies Adjustment of Status Applications to 3 Minor Children of U.S. Citizen, Requiring Family to Pay an Additional $330 to Have Case Re-Adjudicated

In April 2005, USCIS denied three adjustment of status applications filed by the minor children of a U.S. citizen. The basis of the denial for the cases was erroneous. The denial notices stated that the applicants had been ordered excluded, deported, or removed from the United States on November 5, 2001. In fact, the children, who had been residing in undocumented status in the United States with their lawful permanent resident father, were given voluntary departure, with which they complied on November 5, 2001 when they returned to Guatemala. Desperate to be with their father, the children later returned to the United States, and when their father became a U.S. citizen, filed the above referenced adjustment of status applications. Because the children are under the age of 18 and are the children of a U.S. citizen, they are eligible to adjust status regardless of their manner of entry or undocumented status.

In May 2005, a motion to reopen and $110 filing fee for each child was filed with USCIS. Because a separate filing fee had to be submitted for each child, the total cost to the family to correct this USCIS error was $330. In August 2005, USCIS reopened the case, and the applications for adjustment of status remain pending.

5. Erroneous TPS Denials

TPS Erroneously Denied, MTRO Pending Over 4.5 Years Prior to Decision

In February 1999, Mr. P, a national of El Salvador, applied for Temporary Protected Status (TPS) with the Texas Service Center (TSC). After receipt of his application, the TSC requested that Mr. P submit additional documentation, which he submitted in a timely fashion and for which he received a receipt. Because he sent the additional documentation via certified mail, Mr. P also had proof of delivery. Despite his timely compliance with the TSC's request for additional information, in February 2000, Mr. P received a notice from the TSC indicating that his TPS application had been denied due to "abandonment" and failure to provide the requested additional evidence. Mr. P responded to the TSC in writing along with proof that he had timely complied with the TSC's request for evidence and had not abandoned his application. After several additional inquiries with the TSC and his local USCIS office, in December 2000, Mr. P filed a motion to reopen with the TSC. Since that time, Mr. P regularly inquired into the status of his motion to reopen. In July 2005, CLINIC sent a letter to USCIS HQ regarding this case. In September 2005, almost five years after filing the motion to reopen, USCIS HQ informed CLINIC that the case had been reopened.

TPS Denied, Re-registrant Left without Employment Authorization while USCIS Reviews Case

Mr. P is not alone. Ms. T, also a national of El Salvador, filed for TPS in 2001. USCIS denied her 2001 application, but Ms. T filed again during the late initial registration period. In June 2004, this application was granted by a local district USCIS office. USCIS district offices do not issue application approval notices, but Ms. T received employment authorization from the local office when her TPS was approved. In February 2005, Ms. T filed for TPS re-registration, and included a copy of the employment authorization document (EAD) issued by the local district office in 2004, as proof of her current TPS status. However, in August 2005, she received a denial notice from the USCIS California Service Center (CSC) stating that her re-registration application was being denied because USCIS records showed that her prior TPS application had been denied. The notice further stated, "Since temporary protected status has not been granted, the applicant is ineligible for re-registration...therefore the application is denied." Ms. T's renewal EAD application was denied for the same reason.

We believe that the CSC's decision erroneously referred to the 2001 TPS denial. Because no approval notice was issued by the district office in 2004, most likely no evidence of this approval was available to the CSC officer who issued the 2005 denial notice. Ms. T's representative submitted an inquiry to the CSC. The response was, "Paperless denial, needs review. Lincoln denied I-821. [Lincoln is the USCIS Service Center that denied the 2001 TPS application]. CSC needs to review the file to make sure that the information in its system is appropriate for the information in the file. This will take some time." In the interim, her employment authorization has expired. Ms. T has filed an appeal of this decision and CLINIC is working with USCIS HQ to sort out her case.

6. NBC Erroneously Informs V-Visa Applicants that Priority Dates are Current

In March 2005, Ms. C filed an I-539 application to change/extend nonimmigrant status to V-visa status with the National Benefits Center (NBC). V-visas are available to the spouses and children of lawful permanent residents (LPRs) whose I-130 visa petition or permanent residence application (filed on or before December 21, 2000) has been pending for three or more years. V-visa holders can remain in the United States until they become permanent residents or until the law terminates their V status.

In August 2005, Ms. C received a notice from the NBC granting her V-visa extension for only 6 months. The notice indicated that since her immigrant visa priority date was current she had 6 months to file for adjustment of status to that of a LPR. The notice further stated, "If you fail to file for Adjustment of Status within the six month period, you cannot extend, be admitted, or readmitted to a V nonimmigrant status." In reality, Ms. C's priority date is not yet current and she will not be eligible to adjust status for several more years.

It appears that the NBC continues to treat Ms. C as a member of the 2A preference category. Upon approval of the I-130 immigrant visa petition, Ms. C was part of the 2A preference category, which includes unmarried children under 21 of LPRs. However, because Ms. C is now 21, she is part of the 2B preference category, which includes unmarried children over 21 of LPRs. Ms. C's priority date is August 1997 and she is a native of Mexico. The current priority date for 2B nationals of Mexico is December 1991.

In September 2005, CLINIC submitted a letter to USCIS HQ with several examples of this problem in an effort to resolve it.

7. Refugee Has Valid EAD Erroneously Confiscated by DMV

Mr. M entered the United States as a refugee at the JFK airport in New York, NY. Upon arrival, an officer with the Customs and Border Protection (CBP) issued him both an I-94 entry document and an employment authorization document (EAD). Mr. M was resettled in Scranton, PA with assistance from the Refugee and Immigration Services office at Catholic Social Services (CSS).

On August 12, 2005, Mr. M and his CSS case manager went to the Pennsylvania Department of Transportation (PennDOT) with the documents he needed in order to obtain a PA driver's license. Among other things, Mr. M presented his I-94 card, social security card, EAD, and a letter from his resettlement agency. Upon examination of Mr. M's documents, the PennDOT manager noticed that Mr. M's EAD differed from the picture of the EAD in the PennDOT manual. Mr. M's EAD was an older version of the EAD, yet one that continues to be issued by CBP at points of entry. The picture that appeared in the PennDOT manual showed the new version of the EAD. The PennDOT manual instructs employees to fax a copy of any EAD that differs from the EAD pictured in the manual to Immigration and Customs Enforcement (ICE) in Philadelphia. After faxing ICE a copy of the EAD, the PennDOT manager spoke with an ICE officer who stated that Mr. M's card was not valid nor was it issued by USCIS. Furthermore, the ICE officer noted that Mr. M's version of the card had not been in use since 1997. ICE disputed Mr. M's claim that the EAD had been issued at JFK, contesting that refugees are not issued EADs at the airport. The ICE officer then instructed the PennDOT manager to confiscate the EAD card and express mail it to ICE, which the PennDOT manager did. A Department of State official who intervened on Mr. M's behalf instructed ICE to return the EAD, which they had not done as of September 9, 2005. CSS provided Mr. M's employer information about the validity of Mr. M's I-94 refugee stamp and that it was sufficient evidence of employment authorization. Nevertheless, Mr. M was frightened and discouraged by the incident and he was unable to begin working when planned.


About The Author

The Catholic Legal Immigration Network, Inc.'s ("CLINIC") Division of Public Education and Advocacy plans to circulate a compilation of its current cases on a bimonthly basis, in an effort to regularly document and report on problematic developments facing the population served by its network. CLINIC believes that documentation and media coverage of the human impact of our nation's immigration laws and policies are crucial to advocacy efforts to create a more just immigration system. CLINIC relies heavily on the case examples that it receives from its affiliate agencies in order to effectively advocate with officials at the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR). Please contact Vanessa Waldref at vwaldref@cliniclegal.org or (202) 635-5812 with your examples of backlogs, poor customer service, and other problem cases.


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


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