HIGHLIGHTS AND LOWLIGHTS OF 2004 (Part I)Last year, we wrote an article, "Highlights and Lowlights of 2003", which was fairly well-received by our readers, and so we are returning this year to clean up the unfinished incompletes, "I"s, that we handed out and to rank the various important immigration developments of 2004. First the unfinished business. At the end of 2003, we gave an "I" for the Bush Administration's March 2003 act of splitting the INS into three agencies, U.S.C.I.S. (U.S.Citizenship and Immigration Services), U.S.I.C.E. (U.S. Immigration and Customs Enforcement), and CBP (Customs and Border Protection). At the time, I pointed out that the reasons given for splitting the agency were nonsensical, but withheld judgment because of the recency of change. With another year, we assign the grade of "C". From published reports, many U.S.I.C.E. personnel are dismayed by the changeover and have lost their sense of mission. They cannot understand why they should be separate from the CBP, and are actively campaigning to be part of that agency. There is still much confusion in the public as to the lines of authority of each agency, and concern that aliens will suffer through interception by U.S.I.C.E. or CBP and that these agencies will not be able to obtain timely information from U.S.C.I.S. that the aliens are entitled to be in the country. In a March 2004 interoffice memo by William Yates, U.S.C.I.S. ' Associate Director, Operations, he noted that U.S.C.I.S. will correct erroneous entry/exit documents of the U.S.C.I.S. and asylum offices, but not errors generated by CBP. Also many members of the public are confused as to whom they should write checks to when paying one of the agencies. The U.S.C.I.S. has listed 15 possible titles under which it will cash checks including CIS, BCIS, U.S.C.I.S., DHS and INS. However, when we recently wrote a check to "Department of Homeland Security" for a NAFTA Free Trade TN applicant, the CBP inspector refused our check and made the client pay the fee at the border although the DHS is in charge of all three agencies. It does appear, however, that CBP has made great strides in implementing a more efficient entry/exit system, and that U.S.C.I.S. is making progress in slashing its 6 million case backlog. We rated the National Benefits Center (NBC) an "I" last year as it was only beginning its major role of processing family based petitions and applications across the country. We still give the NBC an "Incomplete" as the final rule allowing individuals to file directly to the Center through a Chicago lockbox only came into effect in December 2004. We are encouraged by the larger number of cases that we have seen being scheduled for interviews this past year and would hope that by this time next year the NBC will have done so much of the pre-processing that interview times at local U.S.C.I.S. offices for family based adjustment of status cases will have dropped drastically around the nation. The electronic initiative by U.S.C.I.S. in May 2003 to allow on-line filing of applications received an "I" because of the recency of the initiative and the limited type of applications at the time that could be filed using this method. The number of forms for e-filing has now increased, but this initiative rates a "C-" as even the U.S.C.I.S. acknowledged in mid-2004 that people were not especially enamored with e-filing since the supporting documents had be submitted by mail anyway. Faith in the most attractive feature to attorneys, the ability to beat same day deadlines through instantaneous filings, was undercut by the U.S.C.I.S.' closing of the H-1B cap for fiscal year 2005 at 8:00 p.m. on October 1, 2004, without warning or recourse after having led the American Immigration Lawyers Association to believe that the cap would not be reached for another week. . On new topics for this year, although there were many, we chose 5: 1.) PERM -- The Department of Labor (DOL) receives a "B+" for the PERM rules released in December 2004 which pave the way for quicker adjudications of labor certification applications than under its present traditional and reduction in recruitment (RIR) labor certification programs. The final rule is much more palatable than the proposed rule of 2002 in matters such as the three additional steps for recruitment of candidates for professional positions, use of experience gained with the same employer and alternate experience to qualify for the labor certification, acceptance of business necessity arguments for foreign language and combination occupation requirements, and more workable rules governing standards for rejection of U.S. workers. The major questions between now and the PERM implementation date are whether to file labor certifications prior to PERM (and if yes by the traditional method involving a bare bones application and later supervised recruitment or RIR processing in which recruitment for the job opportunity is completed prior to submission of the application), and whether persons illegal in the country and unable to adjust status to permanent residence under present law should file anyway. (For further discussion of PERM issues, please visit our website at www.alanleelaw.com and the article "Legal and Illegal Aliens - PERM, RIR, Traditional or No Labor Certification Processing?"). 2.) Backlog reduction of the Department of Labor -- DOL receives an "I" for its ambitious plan to cut sharply into its backlog of labor certification applications across the country. Through the 2005 Appropriations Act, DOL is finally receiving the funding it needs to carry out its proposed plan. Backlog centers are already up and running in Dallas, TX. and Philadelphia, Pa.. Tens of thousands of cases have already been transferred to these facilities, and the backlog is to be handled in the FIFO (First In First Out ) method. Only time will tell whether the plan can be executed, given that the PERM program must receive the bulk of attention and the backlog is so huge (310,000 cases as of late 2004). 3.) Backlog reduction of the U.S.C.I.S. -- We give the agency a "C" rating based upon results and the methods used to attain those results. At the end of fiscal year 2003 (September 2003), the U.S.C.I.S. estimated that it had a pending caseload of 6.1 million applications of which 3.7 million had been pending for a period in excess of the target cycle time (set at six months for most applications). The agency only considered the backlog to consist of the 3.7 million applications in which the time for adjudications exceeded the time limits set by the U.S.C.I.S.. In its report to Congress on November 5, 2004, it stated that from then until the end of the third quarter of the fiscal year (June 30, 2004), the backlog had been reduced by 477,961 applications. U.S.C.I.S.' Director, Eduardo Aguirre, reiterated the agency's goal to eliminate the backlog by the end of fiscal year 2006 (September 2006), noting that it would require a consistent positive performance in future quarters. Our less than stellar rating for this performance is not based upon the statistics as related by U.S.C.I.S., but with the methods being used to reach these figures. We initially object to U.S.C.I.S.' planned paper manipulation to
obtain desired reductions. The agency announced in mid-2004 that
I-130's (petition for alien relative) will now only be adjudicated
at the time that priority dates become current. This appears to
mean that most I-130's in the preference categories will in the
future no longer be counted in the backlog. This paper reduction
will eliminate most of the 1.5 million backlog in these applications
(figure as of September 2003) with just a swipe of the pen without
even attempting to assuage the anxieties of petitioner and beneficiary
who will now have to wait long years before receiving an adjudication
from the U.S.C.I.S., eg.- in fourth preference family based cases
involving siblings of U.S. citizens, I-130 adjudications could be
put off for over 12 years (current visa priority date November 1992)
without the petition being counted in the U.S.C.I.S. backlog. In
its report to Congress, U.S.C.I.S. stated that "Since the benefit
cannot be obtained until a visa number is available, the initiative
will not delay a permanent resident status for eligible family members
of United States citizens or lawful permanent residents." However,
this move does have unfavorable consequences. In the span of time
required for adjudication, petitioners and beneficiaries could have
moved many times and either failed to inform the agency of the move
or the change of address notice may never reach the file (a common
occurrence). These persons could be put in a limbo state of not
knowing the fate of their petitions unless they constantly monitor
the U.S.C.I.S. online case status system. Even more troubling is
the effect that such a policy of adjudication would have where the
petitioner passes away in the interim. In family based cases where
the petitioner dies prior to the beneficiary's immigrating to the
United States, the petition is automatically revoked. Congress through
the "Family Sponsor Immigration Act of 2002" has now provided
for the petition to be reinstated and for substitution of an alternative
sponsor in humanitarian situations as long as the petition was approved
prior to the death of the petitioner. The chances of beneficiaries
being thus negatively affected by U.S.C.I.S. delay in approving
I-130 petitions are greatly increased in family based preference
cases where the waiting time for the preference category is long.
(To be continued soon on this website) † 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 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. ‡ This article © 2005 Alan Lee, Esq.
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