Article 2004-01-04
IMMIGRATION NOTES FOR THE HOLIDAYS (Part I)
The holidays give us time to reflect on things that have happened
in the field of immigration over the past few months. This article
will focus on the various agencies and their changes.
We are not certain of the finality of names, and as a result have
not yet made up rubber address stamps for the 3 divisions of the
Department of Homeland Security (DHS) that INS has turned into,
but it would appear that the DHS has settled on the acronyms U.S.C.I.S.,
U.S.I.C.E, and U.S.C.B.P. Short names for these divisions are now
CIS, CBP, and ICE. CIS is the part of former INS concerned with
processing benefits for applicants and petitioners; ICE is the part
of former INS involved in tracking immigration violators already
in the country, detaining and prosecuting them in the immigration
courts; CBP represents a combining of the Customs Service with those
parts of former INS patrolling the borders and inspecting arriving
passengers and cargo. The given acronyms on the changeover date,
March 1, 2003, from INS to DHS - BCIS, BICE and BCBP - are no longer
to be used. However, at this time, checks can be made out to the
agency under the name U.S.C.I.S., BCIS or DHS. In addition, for
the time being, checks made out to INS are still accepted.
The DHS ' crown jewel for improving security in this country is
its investment in U.S. VISIT (Visitor and Immigrant Status Indicator
Technology), a system that when implemented will fingerprint the
two index fingers and facially photograph all visitors and permanent
residents entering the country. As of December 31, 2003, the system
is to be in place to record entries at 115 airports and 14 major
seaports, and exits at 10 airports and one seaport. By December
31, 2004, U.S. VISIT is to be installed at the 50 most highly trafficked
land ports of entry. By December 31, 2005, the system is supposed
to be in place at all ports of entry . This is a step in the right
direction as DHS estimates that such processing will take less than
a minute per individual. We should all be thankful, however, that
Al Qaeda is not a sophisticated organization and relies mainly on
persons of Middle Eastern appearance (who are readily identifiable
as such) and low-tech methods. There are countless soft sites in
this country - nuclear plants, chemical and electrical plants, dams,
bridges, rivers and waterways - which if successfully attacked could
yield mass casualties and chaos. One of the areas in need of great
improvement is the monitoring of cargo coming in through the seaports
of this country. We earlier wrote about this concern in a 2001 article
after the 9/11 attacks, "Immigration and the Economy - Where
Do We Go from Here?". At present, only 2-3% of such cargo is
being inspected and the biggest fear is that such loose inspection
may allow a weapon of mass destruction to be slipped into the country.
One of the largest headaches that U.S.C.I.S. has given applicants
for benefits has been the creation of the National Customer Service
Center (NCSC), a centralized call facility in which contracted personnel
who are not CIS personnel, and working from scripts, answer all
inquiries formerly called into the service centers, thus replacing
the old system of service center personnel answering inquiries directly.
Thus far, the facility has been a miserable failure. The representatives
of the NCSC can only determine whether cases are outside the time
lines of processing and then make a referral to the appropriate
service centers. Then it does not make any further inquiry unless
the inquirer does not receive an answer in 30 days, and makes another
complaint. It takes 3 referrals before anyone can talk to a CIS
officer. The system is not efficient as it interposes another layer
of personnel between the applicant and a responsible individual
at the service center who could provide real answers. In a liaison
meeting with the American Immigration Lawyers Association (AILA)
in New York on October 13, 2003, the Vermont Service Center stated
that it had received 26,000 referrals since June 9, 2003 but had
no resources to address the correspondence, and that it was trying
to set separate e-mail and phone lines. The CIS has now begun to
realize the extent of the failure, but is still clinging to the
idea that the NCSC only requires a small fix when it should be thinking
about dumping the entire system. CIS is planning to restore some
live assistance to the service centers, but the extent of the shift
is to be determined based upon feedback from AILA and other organizations
and on CIS analysis, including cost considerations.
On checking their cases at local CIS offices recently, many applicants
for benefits who filed I-485 adjustment of status applications in
various immigration offices have been shocked to learn that their
cases have been transferred to Chicago or Missouri. These include
applicants within the jurisdiction of CIS offices in New York City,
Atlanta, Chicago, Denver, Harlingen, Hawaii, Houston , Miami, Phoenix
and St. Paul. They should not be alarmed, however, as they are most
likely now part of the CIS program to allow up-front processing
on non-employment based cases in these districts to be handled by
the National Benefits Center (NBC, formerly known as the Missouri
Service Center located in Lee's Summit, Missouri). In this indirect
mail program, cases are being sent to Missouri at various stages
of processing. If the cases have just been filed, they are first
sent to a Chicago lockbox for fee processing, then to the NBC for
initial processing including the employment authorization documents
and advance paroles (projected time of processing 45 days), security
clearances, and then transferred back to the local office to continue
I-485 processing. In addition, some individuals who have pending
asylum adjustment cases have also had their files transferred to
the NBC for preliminary processing.
For readers who do not know, the CIS has rescinded its zero tolerance
policy under which CIS adjudicators could be punished and even dismissed
for making errors in adjudication. The zero tolerance policy, put
into effect by former INS Commissioner James Ziglar on March 22,
2002, further promoted a culture of delay and denial by CIS adjudicators
fearful of the effect of an incorrect approval on their careers.
It further served to increase the backlogs of pending cases at the
CIS as many adjudicators no longer used the discretion which they
were given under the immigration laws to approve cases with any
questions whatsoever. The death of the policy was announced by CIS
deputy director Michael Petrucelli on September 8, 2003, during
an electronic town hall meeting with CIS employees in which he noted
that, although accountability for decisions continues to be imperative,
the CIS' guiding principles of integrity, respect, and ingenuity
are better suited for the tasks CIS now faces. Vermont Service Center
representatives in their meeting with the American Immigration Lawyers
Association New York chapter on October 13, 2003, noted the rescission
of the policy, but stated that there was always the same expectation
of adjudicating according to statute, regulation and policy.
How many clearances do you need to have your I-485 adjustment of
status application approved? We count 4 at the present time, and
inability to complete all the security checks on time accounts for
many delays at the service centers, and individuals not being approved
on the date of interview at the local CIS offices. There are the
FBI name clearances, FBI fingerprints, CIA checks, and Interagency
Border Inspection System (IBIS) checks. CIA clearances need 60 days,
and IBIS clearances must be done within 35 days of the day the benefit
is given. CIS officers are no longer waiving any of the security
clearances except in cases of emergency. But even then, they are
not waiving CIA clearances although the consequences may be drastic
for the visa applicant, e.g.-visa lottery winner not being able
to obtain permanent residence because the last day for the conferring
of benefits, September 30th, has not passed the 60 day clearance
period and the CIS is not received any clearance beforehand.
(to be continued)
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