July 12, 2007
VIA FEDERAL EXPRESS
Michael Chertoff, Esq.
Department of Homeland Security
RE: USCIS Decision to Reject I-485 Filings
Dear Mr. Chertoff:
It was a pleasure and an honor to meet with you and to share my views during
your panel discussion at the Harvard Worldwide Congress June 15, 2007 in
Washington, D.C. I understand and appreciate that the responsibility vested
in you as the Secretary of the U.S. Department of Homeland Security is no
simple task. We applaud your service to our nation. After meeting with you
personally and speaking with you, I am more convinced than ever that you
will do the right thing for our country and for the people you serve, both
in terms of securing our nation and in being the leader of the DHS, with
over 20 federal agencies reporting to you, including the USCIS.
Purpose of this Letter
I am writing to you at this time to address recent actions by the USCIS to
refuse to accept I-485 adjustment of status filing during July 2007 that are
having significant impact upon the reliability of the legal immigration
system in this country, as well as impacting legal foreign nationals and the
many U.S. businesses that rely upon the work they perform.
USCIS Decision Contradicts its Long Standing Procedure
In contradiction of its own long standing policy and procedure, we
understand that the USCIS, through its Director Gonzalez, contacted the U.S.
Department of State (DOS) and requested or required the DOS to issue a
“revised” Visa Bulletin on July 2, 2007. The USCIS then used the revised
Bulletin to refuse to accept I-485 filings. This decision deprives thousands
of foreign nationals, and their families, of the rights and privileges that
are attendant to the I-485 filing.
These Highly Skilled Professionals Followed All the Rules and
Believe in the American Dream
These professionals and their employers have played by our established
immigration laws and rules. The vast majority of these thousands of
potential applicants has a U.S. employer corporation, university or other
business as a sponsor for permanent resident status. The exceptions from an
employer are for those who are considered of “extraordinary ability” or
whose work is in our “national interest.” Many of these applicants have
completed their Bachelor’s, Master’s and/or PhD programs from U.S.
universities. They believe in the opportunities of this great nation and
strive to achieve the American Dream by following all the rules, working
hard, paying taxes, and striving to do the right thing. They believe in this
country, and rely upon our systems, our government, and our processes.
Unfortunately, on July 2, 2007, we let them down. The USCIS abandoned its
own system and long standing practices. This happened through manipulation
of the use of visa numbers, insisting upon the issuance of a "revised visa
bulletin," and instituting the USCIS policy of rejecting every
employment-based I-485 that could have been filed during the month of July
USCIS Decision Denies Substantive and Procedural Rights to Highly
Skilled Workers and Their Employers - Many of Whom Have Already Suffered and
Will Suffer Further Harm/ Injury
Not only does the USCIS' action harm the individuals and employers involved,
it undermines the reliability of our entire employment-based immigration
system. The unexpected decision of the USCIS to refuse to accept any I-485
filings denies both substantive and procedural due process rights to would
be applicants across the U.S. All of these applicants are employment based
(EB) applicants who are primarily highly skilled professionals or
experienced workers, that the U.S. seeks in high demand areas, including:
science, technology, medicine, research, business, academia, and education.
The harm in not accepting the filings in July 2007 goes beyond mere delay.
In reliance upon the July Visa Bulletin, starting in mid-June 2007, these
applicants took the steps necessary to prepare their filings and made
decisions in reliance upon the USCIS accepting their filings during July
2007. In order to be present in the U.S., as required for these filings,
many applicants and their families canceled travel plans abroad or arranged
to return to the U.S. on short notice missing family weddings and other
important life events. They undertook medical examinations and paid for the
required tests which must accompany the I-485 filings. (The USCIS had
refused to waive this requirement even temporarily.) They hired lawyers to
process their paperwork; they arranged to obtain documents from abroad on an
expedited basis, involving foreign lawyers and foreign governments, all at a
significant cost. They made employment and other strategic immigration
related decisions to be able to process their I-485s for them and their
families. Some canceled visa appointments at the consulates, or withdrew
other immigration filings, all in reliance upon the USCIS accepting I-485
filings during July 2007.
The applicants and their employers lose the rights and privileges that
accompany the filing of the I-485. These include eligibility for the
Employment Authorization Document (EAD) and Advanced Parole (AP), thus
eliminating the need for the individuals and their employers to make the
filings necessary to maintain a non-immigrant, temporary status. These same
ancillary benefits also apply to dependant family members. Most importantly,
those that have not filed I-485s are not eligible for "portability" benefits
under the “American Competitiveness in the Twenty First Century Act” of Oct.
2000 or “AC21” as it is sometimes referred to. This ineligibility for AC21
portability forces career stagnation. This is to the detriment of the
individual as well as their sponsoring employer. Under AC21 portability,
employers can promote and/or relocate employees to positions that are the
same or similar job classifications as the positions for which they were
initially sponsored. Individuals can utilize these provisions for career
advancement, and for entrepreneurship. Given that the green card process
often spans many years, AC21 portability allows the necessary flexibility to
permit the case to continue, to accommodate changes in the sponsoring
employer's needs as well as opportunities that are specific to the
The list of stories of individuals and families harmed by the USCIS decision
is endless. We have for example, many spouses who will now be separated
potentially for years on end, as one received a green card during the USCIS'
June "rush," while the other is now ineligible to file.
The USCIS decision also created a burden on U.S. employers. Further delays
in the green card process mean that, at best, U.S. employers have to
continue to file temporary petitions to keep their workforce in the U.S.
legally; at worst, it jeopardizes the availability of this needed highly
educated and skilled workforce.
USCIS Motive is to Collect Millions of Additional Filing Fees
Many are baffled by the USCIS decision to reject I-485 filings in July, and
its use of the “revised” Visa Bulletin as an excuse. The suspected motive is
the collection of the substantially higher filing fees that will be
generated after July 27, 2007. This entire incident sends the wrong message
about our government, our policies and our legal system reeking of greed and
inconsistency. Even the appearance of such impropriety undermines our
We Expect Honesty and Consistency by the Agency Created to Provide
We expect integrity, consistency, and transparency in our government and our
immigration system. This is more so particularly for the USCIS that was
created to provide “service” and serve its fee paying clients/ customers.
The separation of enforcement, border protection, and other functions from
service and benefits that occurred in 2003 requires the USCIS as an agency
within DHS to focus primarily in providing quality “service” and benefits to
its clients, as its name suggests. Unfortunately, on July 2, 2007, and the
days preceding and until today, the USCIS miserably failed those whom it was
created to serve.
There are allegations of improprieties in the usage of visa numbers for
cases that have not yet been approved, contrary to regulation. This
allegedly artificially increased the usage of the numbers, allowing the
USCIS to use them at a rate that is many times its normal monthly usage. The
USCIS claims to have approved an unprecedented number of cases and requested
all the remaining (approximately 60,000) visa numbers for the fiscal year
within a span of just over two weeks. The net result of this, in addition to
the damage already caused, will be litigation against the USCIS. This is
costly and resource intensive. We are asking you to step in, and right this
wrong. In so doing, you would take a significant step toward restoring the
integrity of the system that is in place. People must be able to rely upon
the system. In this case, they made decisions, and expended significant time
and money, based upon the July Visa Bulletin. They did so because Visa
Bulletins have always been reliable and have worked in a systematic,
unwavering manner, in terms of governing which cases can be filed in a
particular month. This must be restored.
U.S. is the Beacon of Hope – Our Government Cannot Exhibit Greed and
Inconsistency in its Policies
We are a nation of immigrants. Immigrants come to this great nation in
search of freedom and opportunities. I am eternally grateful for the
incredible opportunities afforded me in the great nation to maximize my
potential, build my law firm and lawfully, honestly and diligently serve
those who wish to immigrate here lawfully. This is what sets the U.S. apart
from other countries and governments rampant with corruption, greed,
mismanagement, and other negative influences. The actions of the USCIS in
connection with the events of July 2, 2007, have made many feel cheated,
betrayed and disappointed in our government. How can the U.S. do this when
we portray ourselves as the beacon of hope and the symbol of integrity and
transparency for the rest of the world?
Request is that You Step in to “Right this Wrong”
Based on the above, we respectfully request you to undertake the following
to attempt to redress the irreparable injury / harm caused to so many,
including the reputation and reliability of our own government:
- Issue a directive to USCIS that this issue be promptly resolved. The USCIS
must accept the I-485 filings that it was supposed to accept not just in
July 2007, but for a sufficient time thereafter to allow for the proper
preparation of those filings, including the need for medical examinations
and accommodation for travel plans. This means that the USCIS must accept
I-485 filings at the earlier fee and grant a minimum of an additional 46
days (time that would have been allowed from the date of the issuance of the
Visa Bulletin on June 12, 2007 until July 31, 2007, the date until when the
I-485s could have been filed but for the actions of the USCIS).
- Investigate the irregularities in the use of visa numbers as explained
above. We would ask for you to launch an investigation into the usage of
visa numbers for cases that were not approved, and to restore those numbers
and make them available during FY 2007.
- Investigate the expenditures in terms of overtime, contractors and other
efforts that were allegedly engaged in as part of the effort to deplete the
allocation of visa numbers for FY 2007 before July 2007.
- Take all necessary measures to avoid any possibility that a similar event
could occur in the future.
We expect you to step in to attempt to “right the wrong”. I believe that you
will do the right thing for American employers and hard working immigrants
who play by the rules not to lose faith in the integrity of our legal system
and in our government. We appeal to you to do the right thing legally,
morally, ethically and in good conscience. Our people need to gain back some
of the trust in our government, our legal system, and in our country.
Thank you for your time and anticipated favorable consideration in this
matter. Please do not hesitate to contact me if you have any questions.
President and Founder
Murthy Law Firm
Cc: Emilio T. Gonzalez, Esq.
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