IMMIGRATION IN THE EARLY FALL (Part II)The children are going back to school and the remnants of Hurricane Ivan are making life miserable for passersby without umbrellas on Eighth Avenue outside our windows. The immigration forecast for the near future is also decidedly gloomy. 1. Congress is back in session, but the two parties do not appear to be interested in passing anything substantial -- only in scoring political points over the other party. Electioneering appears to be the issue, not the welfare of the American people, and certainly not the welfare of immigrants. AgJobs, the Dream Act, and legalization proposals and plans all appear to have fallen by the wayside of political wrangling. On immigration legislation as well as the ban on automatic firearms, the Bush Administration has been two-faced in saying that the president would sign AgJobs and the ban if the legislation reached him, but has taken steps to ensure that the bills never arrive at the White House. Congress is set to adjourn for the elections sometime in the first two weeks of October, but it appears a distinct possibility that a lame-duck session of Congress will be held after the elections. If so, serious consideration should be given to these deserving pieces of legislation at that time. 2. In our last column, I urged individuals to begin permanent residence cases based on employment as soon as possible if the persons were qualified because of the huge amounts of unadjudicated adjustment of status cases still being held by U.S.C.I.S. service centers, and their potential to seriously backlog the immigrant visa categories. The Department of State is now warning of this looming situation in its October 2004 visa bulletin in which it states that it expects little forward movement in the family based categories for fiscal year 2005 (October 1, 2004-Sept. 30, 2005), and that cut-offs in the employment based third preference category can come as early as January 2005. In its warning, the Department acknowledged the heavy demand for visa numbers as the U.S.C.I.S. has begun to address its backlogs and finalize actions on its adjustment of status cases. It also wrote that the increasing CIS use of numbers is likely to require the establishment of cutoff dates in one or more employment categories during the fiscal year. 3. As I write this, I look at the approvals which we have been receiving for recent cases, and have noted the decreasing number of Referrals for Further Evidence (RFEs) from the U.S.C.I.S.. This is as per C.I.S. Associate Director for Operations William Yates' memo of May 4, 2004, discouraging adjudicating officers from issuing RFEs where the record is complete. (In the Yates memo, CIS officers can issue denials without RFEs where there is evidence of clear ineligibility, where the record is complete and CIS believes the applicant has not met the burden to establish eligibility for the benefit; and RFE issuance is discretionary where the evidence raises questions concerning eligibility or does not fully establish eligibility). My initial reaction was one of happiness until I remembered that denials take longer to write than approvals. Now I am nervously sitting back and waiting to see whether I will be getting back denials instead of RFEs for cases which have already exceeded the CIS timelines for adjudication. 4. Readers should note that the U.S.C.I.S. has been rapidly changing its forms during this past year and that, unlike changes in other years, is no longer accepting the older forms in most cases. Whether the agency continues accepting old forms depends upon the legend on the bottom of the form on the right-hand side. Some legends say that prior forms can be used to a certain date, and others just have the legend "Y" or "N". The "Y" means that old forms are acceptable while the "N" designation means that they are not. Recently the CIS stated that I-134 (Affidavit of Support), I-485A (Supplement A to Form I-485 Application to Register Permanent Residence) and I-824 (Application for Action on an Approved Application or Petition) are being replaced and the older forms will not be accepted after September 30, 2004. 5. The Social Security Administration has recently issued a final rule that F-1 students can only obtain Social Security numbers now if they either hold employment authorization documents (EAD) from the U.S.C.I.S.; are authorized to work by their schools pursuant to curriculum practical training (CPT), or have evidence that they have been authorized to work by the school and have either secured employment or a promise of employment. So if this is the case, how are F-1 students supposed to drive in a state like New York which now seems to require a valid Social Security card in order to grant a license? Currently the New York State Department of Motor Vehicles is threatening to suspend as many as 250,000 licenses for lack of valid social security numbers. The Social Security Administration while acknowledging the difficulties that foreign students could have in leasing apartments, opening bank accounts, negotiating utility services or driving pointed out dubious alternatives and stated that the primary purpose of the social security number was for the Social Security Administration to track earnings over workers' lifetimes and that the agency could not control the types of information that private businesses request of their customers. Have we become Fortress America - un- inviting to persons of other lands thinking about studying here that we risk losing over $12 billion in foreign student revenue to the U.S. along with the goodwill of those foreign students who would normally return to their homelands and relate their favorable impressions of their stays in the U.S.? There must be a balancing of interests in this country and not just an inflexible knee-jerk reaction every time someone utters the words "homeland security". A balancing of risk and reward by multiple governmental agencies should be made before such decisions with far reaching consequences are implemented. † The author 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 the 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. ‡ This article © 2004 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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